[Congressional Record Volume 163, Number 111 (Wednesday, June 28, 2017)]
[House]
[Pages H5263-H5287]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PROTECTING ACCESS TO CARE ACT OF 2017
General Leave
Mr. GOODLATTE. Mr. Speaker, I ask unanimous consent that all Members
may have 5 legislative days to revise and extend their remarks and
include extraneous material on H.R. 1215.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Virginia?
There was no objection.
The SPEAKER pro tempore. Pursuant to House Resolution 382 and rule
XVIII, the Chair declares the House in the Committee of the Whole House
on the state of the Union for the consideration of the bill, H.R. 1215.
The Chair appoints the gentleman from Louisiana (Mr. Graves) to
preside over the Committee of the Whole.
{time} 1407
In the Committee of the Whole
Accordingly, the House resolved itself into the Committee of the
Whole House on the state of the Union for the consideration of the bill
(H.R. 1215) to improve patient access to health care services and
provide improved medical care by reducing the excessive burden the
liability system places on the health care delivery system, with Mr.
Graves of Louisiana in the chair.
The Clerk read the title of the bill.
The CHAIR. Pursuant to the rule, the bill is considered read the
first time.
The gentleman from Virginia (Mr. Goodlatte) and the gentleman from
Michigan (Mr. Conyers) each will control 30 minutes.
The Chair recognizes the gentleman from Virginia.
Mr. GOODLATTE. Mr. Chairman, I yield myself such time as I may
consume.
Mr. Chairman, the bill before us today is modeled on California's
highly successful litigation reforms that have lowered healthcare costs
and made healthcare much more accessible to the people of that State.
Because the evidence of the effects of those reforms on lowering
healthcare costs is so overwhelming, the Congressional Budget Office
has estimated that, if the same reforms were applied at the Federal
level, they would save over $50 billion over a 10-year period.
Because the evidence that those reforms increase access to healthcare
is so overwhelming, they are supported by a huge variety of public
safety and labor unions, community clinics and health centers, and
organizations dedicated to disease prevention, all of which have seen
the beneficial effects of these reforms in California.
So popular are these reforms among the citizens of California that a
ballot initiative to raise the damages cap, backed and funded by trial
lawyers, was defeated by an over 2-to-1 margin in 2014.
This bill's commonsense reforms include a $250,000 cap on inherently
unquantifiable noneconomic damages and limits on the contingency fees
lawyers can charge. They allow courts to require periodic payments for
future damages instead of lump sum awards so bankruptcies in which
plaintiffs would receive only pennies on the dollar can be prevented.
They include provisions creating a ``fair share'' rule by which damages
are allocated fairly in direct proportion to fault.
This bill does all this without in any way limiting compensation for
100 percent of plaintiffs' economic losses, which include anything to
which a receipt can be attached, including all medical costs, lost
wages, future lost wages, rehabilitation costs, and any other economic
out-of-pocket loss suffered as the result of a healthcare injury. Far
from limiting deserved recoveries in California, these reforms have led
to medical damage awards in deserving cases in the $80 million and $90
million range.
Unlike past iterations, this bill only applies to claims concerning
the provision of goods or services for which coverage is provided in
whole or in part via a Federal program, subsidy, or tax benefit, giving
it a clear Federal nexus. Wherever Federal policy directly affects the
distribution of healthcare, there is a clear Federal interest in
reducing the costs of such Federal policies.
The legislation before us today also protects any State law that
otherwise caps damages--whether at a higher level or lower than the
caps in the bill--or provides greater protections that lower healthcare
costs.
When President Ronald Reagan established a special task force to
study the need for Federal tort reform, that task force concluded as
follows: ``In sum, tort law appears to be a major cause of the
insurance availability and affordability crisis which the Federal
Government can and should address in a variety of sensible and
appropriate ways.''
Indeed, the Reagan task force specifically recommended ``eliminate
joint and several liability,'' ``provide for periodic payments of
future economic damages,'' ``schedule''--that is, limit--``contingency
fees'' of attorneys, and ``limit noneconomic damages to a fair and
reasonable amount.'' All of these recommended reforms are part of the
bill before us today.
I urge my colleagues to support this legislation that would enact
much-needed commonsense and cost-saving litigation reforms that would
increase healthcare accessibility for all.
Mr. Chairman, I reserve the balance of my time.
House of Representatives,
Committee on Energy and Commerce,
Washington, DC, March 21, 2017.
Hon. Bob Goodlatte,
Chairman, Committee on the Judiciary,
Washington, DC.
Dear Chairman Goodlatte: I write in regard to H.R. 1215,
Protecting Access to Care Act of 2017, which was referred in
addition to the Committee on Energy and Commerce. I wanted to
notify you that the Committee will forgo action on the bill
so that it may proceed expeditiously to the House floor for
consideration.
The Committee on Energy and Commerce takes this action with
our mutual understanding that by foregoing consideration of
H.R. 1215, the Committee does not waive any jurisdiction over
the subject matter contained in this or similar legislation
and will be appropriately consulted and involved as this or
similar legislation moves forward to address any remaining
issues within the Committee's jurisdiction. The Committee
also reserves the right to seek appointment of an appropriate
number of conferees to any House-Senate conference involving
this or similar legislation and asks that you support any
such request.
I would appreciate your response confirming this
understanding with respect to H.R. 1215 and ask that a copy
of our exchange of letters on this matter be included in your
committee's report on the legislation or the Congressional
Record during its consideration on the House floor.
Sincerely,
Greg Walden,
Chairman.
____
House of Representatives,
Committee on the Judiciary,
Washington, DC, March 21, 2017.
Hon. Greg Walden,
Chairman, Committee on Energy and Commerce,
Washington, DC.
Dear Chairman Walden: Thank you for consulting with the
Committee on the Judiciary and agreeing to be discharged from
further consideration of H.R. 1215, the ``Protecting Access
to Care Act,'' so that the bill may proceed expeditiously to
the House floor.
I agree that your foregoing further action on this measure
does not in any way diminish or alter the jurisdiction of
your committee or prejudice its jurisdictional prerogatives
on this bill or similar legislation in the future. I would
support your effort to seek appointment of an appropriate
number of conferees from your committee to any House-Senate
conference on this legislation.
I will seek to place our letters on H.R. 1215 into the
Congressional Record during floor consideration of the bill.
I appreciate your cooperation regarding this legislation and
look forward to continuing to work together as this measure
moves through the legislative process.
Sincerely,
Bob Goodlatte,
Chairman.
Mr. CONYERS. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, H.R. 1215 will do little to protect Americans' access
to safe and affordable healthcare. Instead, it will deny victims of
medical malpractice and defective medical products the opportunity to
be fully compensated for their injuries and to hold wrongdoers
accountable.
This legislation imposes various restrictions on lawsuits against
healthcare providers concerning the provision of healthcare goods or
services that would apply regardless of the merits of the case, the
misconduct at issue, or the severity of the victim's injury.
There are so many problems with this bill, but to begin with, this
bill would cause real harm by severely limiting the ability of victims
to be made whole. For instance, the bill's $250,000 aggregate limit for
noneconomic damages, an amount established more than
[[Page H5264]]
40 years ago pursuant to a California statute, would have a
particularly adverse impact on women, children, the poor, and other
vulnerable members of our society.
These groups are more likely to receive noneconomic damages in
healthcare cases because they are less able to establish lost wages and
other economic losses. Women, for example, are often paid at a lower
rate than men, even for the same job. Also, they are more likely to
suffer noneconomic loss, such as disfigurement or loss of fertility.
Imposing a severe limit on noneconomic damages, therefore, hurts them
disproportionately.
{time} 1415
Finally, this bill is particularly harmful for veterans, members of
the military, and their families. Because the bill prevents State tort
law in any healthcare-related lawsuit that includes any coverage
provided by a Federal health program, all cases arising from
substandard care received in a Veterans Administration facility or a
military hospital would be subject to the bill's restrictions.
As a diverse coalition of veterans organizations noted in their
letter of opposition, H.R. 1215 would limit the ability of veterans and
military families to hold healthcare providers, drug manufacturers, and
medical products providers accountable for pain and suffering and death
that result from substandard care, preventable medical errors, and
defective drugs and devices.
For these and other reasons, I implore and urge my colleagues to
oppose H.R. 1215.
Mr. Chairman, I reserve the balance of my time.
Mr. GOODLATTE. Mr. Chairman, I yield 2 minutes to the gentleman from
Florida (Mr. Gaetz), a member of the Judiciary Committee.
Mr. GAETZ. Mr. Chairman, I thank the gentleman for yielding.
Today, in the Congress, too many Republicans and Democrats are
obsessed with health insurance, often at the expense of the reforms
that could reduce the cost of healthcare. If we cut the cost of
healthcare, we make solutions far more attainable for affordable
coverage.
I support this tort reform legislation because it will make
healthcare in America more accessible and less expensive.
Defensive medicine costs Americans over $50 billion. Commonsense
reform will eliminate these costs, help patients afford healthcare, all
while reducing the Federal deficit.
It is no surprise that defensive medicine costs so much. One survey
recently reported that 93 percent of doctors practice defensive
medicine due to a broken tort system.
It is outrageous that we force doctors to subject patients to costly,
unnecessary, and occasionally harmful tests just to avoid frivolous
lawsuits.
Let's go back to performing medical tests when needed for the
patient, not to simply avoid exposure in litigation for insurance
companies. This will lower healthcare costs.
The New England Journal of Medicine found that 1 in every 14 doctors
gets sued each year. An earlier Harvard study revealed that 40 percent
of these malpractice suits were groundless, yet over a quarter of these
frivolous cases are settled, and the average payout was $300,000.
Groundless cases overburden our legal system, making it harder for
people with legitimate grievances to have their day in court.
Frivolous claims drive up the cost of insurance for all healthcare
providers, driving many physicians away from the healthcare profession.
We need more doctors and hospitals, not less. Without reform, we get
higher costs, fewer doctors, a larger Federal deficit, and worse
healthcare outcomes.
Let's pass this bill and start delivering on more accessible
healthcare for the American people.
Mr. CONYERS. Mr. Chairman, I yield 3 minutes to the distinguished
gentleman from Tennessee (Mr. Cohen).
Mr. COHEN. Mr. Chairman, I thank Ranking Member Conyers for yielding
me time. Mr. Chair, I share your grief over last night's loss. Sorry
about that.
Mr. Chairman, this bill is a loss, too. It is a loss to people who
have been injured by defective drugs, defective medical devices, been
harmed in nursing homes, or been harmed by medical malpractice because
it sets a cap on noneconomic damages of $250,000, no matter whom the
person is, whatever their position was, no matter what damages they
suffered.
Trial lawyers aren't the most liked people in America. They are a
little bit above Congress people, I think, but it is right in there
with used car salesmen. None of the three of us are doing real good. So
it is easy to kind of beat us up.
But people like their doctors. I see Dr. Roe over there. People like
doctors. Doctors provide healthcare, if they are allowed to by Federal
law and given the opportunity to get reimbursed and have a system.
People don't generally like trial lawyers. But the fact is, trial
lawyers do a public service because they represent people. When they do
it on contingency fees, they do it for people who wouldn't have the
money to hire a lawyer, necessarily, but have been harmed. And they go
in on the idea that sometimes they will get nothing, but if they win,
they get a contingency fee, and they give representation to people who
otherwise couldn't afford it.
When they win, they win because a jury--which is like a little focus
group of America--says there was a duty that the doctor breached and a
harm done to the patient and the patient should be compensated.
My chairman says this is just like California, and there he goes
again with that Reagan stuff. Reagan was 40 years ago, I think, 35
years ago. Whatever. Californians thought this isn't California's law.
This goes further than California on joint liability. The fact is, when
you eliminate joint and several liability in certain places, a certain
part of it is California, a certain part of it isn't, it is less likely
that the injured party is going to be able to collect.
It goes further in terms of setting a statute of limitations, but the
big picture is States' rights. Normally, the folks on the other side of
the aisle are all for States' rights. They are for States' rights when
it comes to voting rights. They are for States' rights when it comes to
civil rights. They are for States' rights on all kinds of things that
generally tend to tamp down the lower economic folk in our country,
particularly in the South.
But here on medical malpractice, which has always been a province of
the States, they want to usurp it and make a Federal standard that
applies to everybody.
If a State hasn't set a cap on damages, then the Federal cap of
$250,000 would go into place. So if you have a State that says it is
unconstitutional to have a cap because you have got a right to a jury
trial, then you might not be able to have that cap, and you will have
this $250,000 cap set.
There are all kinds of problems with Federalism, all kinds of
problems with people who have been injured getting compensated, and
other problems.
Go Tigers.
Mr. GOODLATTE. Mr. Chairman, I yield 2 minutes to the gentleman from
West Virginia (Mr. Jenkins).
Mr. JENKINS of West Virginia. Mr. Chairman, I thank the gentleman for
this opportunity. I have been sitting here listening very carefully to
this debate. It sounds like a partisan fight. Democrats say this is a
bad bill. Republicans say it is a good bill. If you are watching at
home, you think: Here we go again. Just gridlock in Washington. Can't
get something done.
Well, let me tell you and let me suggest that preserving and
protecting access to care should not be a partisan issue. Why do I say
that? I am from West Virginia, and 14 years ago we passed medical
liability reform very similar to what we are getting ready to pass
today, including $250,000 caps on noneconomic damages.
Why do I know it was not a partisan issue back then is because the
Governor of West Virginia who introduced the bill, House Bill 2122, was
Congressman Governor Bob Wise. Bob Wise had been a Member of Congress
for 18 years as a Democrat here in Congress. He introduced the bill 14
years ago in West Virginia. He signed the bill. It was his bill.
The West Virginia Legislature, the House of Delegates, was 68 percent
Democrat. The West Virginia Senate was 70 percent Democrat. A Democrat
Legislature, a Democrat Governor, and the reform is just like what we
are getting ready to pass today.
[[Page H5265]]
Here is what Democrat Governor Bob Wise said about the bill and why
they did it. What was the goal? ``To work together towards a common
goal preserving the healthcare system that serves all West
Virginians.''
What else did Governor Democrat Bob Wise say? He said, ``This is a
prime example of how government can work for the people,'' when he
passed this bill and signed it.
On the day he signed the bill, this is what Democrat Bob Wise's
newsletter said: ``My number one commitment is the health and safety of
the citizens of West Virginia?''
The CHAIR. The time of the gentleman has expired.
Mr. GOODLATTE. Mr. Chairman, I yield an additional 1 minute to the
gentleman.
Mr. JENKINS of West Virginia. Mr. Chair, this should not be a
Democrat/Republican issue. This should be an American healthcare issue.
This should be preserving and protecting access to quality care. Just
like Democrat Congressman Bob Wise in West Virginia 14 years ago set
the example, we ought to set the example here of passing this with
strong bipartisan support. This is quality care for the American
citizens.
Mr. CONYERS. Mr. Chairman, I yield 2 minutes to the gentleman from
New York (Mr. Nadler), a senior member of the House Judiciary
Committee.
Mr. NADLER. Mr. Chairman, I thank the gentleman for yielding.
Yes, the previous speaker is right. This shouldn't be a partisan
issue, but the Republican Party in both houses has been doing its best
to destroy healthcare for the American people in the last couple of
months. This is just a different piece of the same plot. Bob Wise
didn't always have the best judgment.
This cruel legislation does exactly the opposite of what its title
states. It would place an artifical and very low cap on noneconomic
damages in medical malpractice cases, and it would lock that figure
into law without adjustment for inflation, which would reduce its value
almost to zero over time.
By capping damages, this bill would ensure that many victims of
medical malpractice will not be fairly compensated for their injuries.
Many other victims may be unable even to file a case in the first place
because they will be unable to retain a lawyer. That is because medical
malpractice cases often require significant upfront costs, as high as
$100,000 on average, and few attorneys will take a case if the cap on
damages means that there will be no reasonable likelihood of recouping
their costs.
This bill's cap on noneconomic damages is particularly insidious
because of its discriminatory effect on many women, children, and
seniors. They often have little or no lost wages to calculate, and,
therefore, they may recover very little in the form of economic
damages. But they may still have suffered a real and lasting injury
that deserves compensation. This includes women who may have chosen to
stay home and raise a family, children who have yet to begin their
careers, or seniors who have retired and left the workforce.
Why should they be punished under this bill and get very little
compensation for a lost limb or something else?
The law recognizes that pain and suffering, and other noneconomic
damages, are worthy of compensation, but supporters of this bill think
Congress, not juries, should decide what those injuries are worth, and
it is shamefully little.
This legislation is based on the California law that includes a cap
of $250,000 for noneconomic damages, but it was enacted back in 1975.
Whether or not that was an appropriate figure 40 years ago, in today's
dollars, it is clearly inadequate.
After adjusting for inflation, the cap would need to be approximately
$1.128 million to be the same as the $250,000 cap was when it was
enacted.
The CHAIR. The time of the gentleman has expired.
Mr. CONYERS. Mr. Chairman, I yield the gentleman an additional 30
seconds.
Mr. NADLER. Thinking of it another way, that $250,000 cap is now
worth just over $56,000, nearly a fifth as much.
Even assuming that $250,000 is the appropriate figure today, fairness
demands that this cap be indexed for inflation going forward so that we
do not see a similar erosion of value. But this bill locks in
an already low cap and lets it dwindle away until it is worth
essentially zero.
I offered an amendment to adjust the cap to reflect 40 years of
inflation, and to index it going forward, but the Rules Committee did
not make it in order. Instead, we are forced to vote on a bill that,
over time, will consider pain and suffering to be worth nothing at all.
This bill would not reduce the cost of malpractice insurance, it
would not drive bad doctors out of practice, and it would certainly not
protect patients.
What it would do is give a free ride to a healthcare provider, or a
healthcare entity, that seriously harms a patient or a consumer.
I urge my colleagues to reject this unfair and unnecessary
legislation.
Mr. KING of Iowa. Mr. Chairman, I yield 4 minutes to the gentleman
from Tennessee (Mr. Roe).
Mr. ROE of Tennessee. Mr. Chairman, I rise today in support of H.R.
1215, the Protecting Access to Care Act of 2017, a much needed piece of
legislation aimed at reforming medical malpractice law in order to help
drive down the cost of providing healthcare and, thereby, making it
more affordable for all Americans.
I had the privilege of practicing medicine in the great State of
Tennessee for 31 years before coming to Congress. The one thing that
took away some of the joy from that practice was the threat of
frivolous lawsuits.
Because of trial attorneys, over the years, the premiums for
malpractice insurance have ballooned to levels that make it difficult
for providers to practice and are driving more people out of practice,
away from small practices, and into large hospital systems just so they
can survive as a practitioner. Worse still, the jury awards aren't
going to the victims of actual malpractice.
{time} 1430
In Tennessee, prior to implementing some malpractice reforms, over
half the premium dollars were paid out to attorneys, and less than 40
cents of every dollar paid out have gone to people who have actually
been injured. So we are not compensating the injured party.
Thankfully, States like my home State of Tennessee are taking action
and have enacted much-needed reforms in the last decade, and the costs
associated with providing care have plummeted since then. In 2008, the
Tennessee Medical Malpractice Act was signed into law and created
requirements that the plaintiff in a healthcare liability action
provide the defendant with a pre-suit notice of the claim as well as a
qualified expert to review the case and certify it has merit.
Adding onto these reforms, in 2011, the Tennessee Civil Justice Act
was signed into law, and it included a $750,000 cap for noneconomic
damages and a cap on punitive damages at the greater of twice the
compensatory damages or $500,000.
With these changes, between 2008 and 2014, the number of medical
malpractice lawsuits in Tennessee decreased by 36 percent, from 584 to
just 374. And, Mr. Chairman, between 2009 and 2014, the annual medical
malpractice premium for an OB/GYN doctor like myself decreased from
$52,000-plus to $33,000-plus, nearly a $20,000 decrease in premiums per
year.
Those of us who were here in 2009 when the Affordable Care Act was
debated remember that President Obama acknowledged that the cost of
defensive medicine was a bipartisan concern and something that he
wanted to address. Despite the fact that our legislation is modeled on
a California law that has stood the test for 40 years through both
Republican and Democratic Governors, Democrats made no serious attempt
to address medical malpractice as their healthcare bill was pushed
through, which is yet another flaw of the ACA.
Today's bill is common sense. With these reforms, we will ensure
patients, not trial attorneys, are compensated for legitimate
malpractice claims--and there are legitimate claims out there. But we
will also prevent frivolous litigation from moving forward.
For those concerned about the 10th Amendment, this bill respects
States' rights and only subjects claims with a Federal nexus to this
law, while giving a great deal of latitude to States to act in their
own accord.
[[Page H5266]]
Mr. Chairman, I loved what I did while I was in practice. I had the
chance to deliver about 5,000 babies, and it never felt like a job. It
is just what I did and enjoyed doing. But at a time when healthcare
costs are spiraling out of control, an easy fix like H.R. 1215 just
makes sense and is just another piece of the puzzle to help the costs
of healthcare go down.
I strongly support the much-needed reforms in this legislation, and I
urge my colleagues to vote in favor of final passage.
One final thing, Mr. Chairman. I have a list here of our premiums in
the State of Tennessee, and under every specialty listed here--and
there are numerous--there were dramatic decreases in each of these.
Mr. CONYERS. Mr. Chairman, I yield 2 minutes to the gentlewoman from
Texas (Ms. Jackson Lee), the most active Member in the 115th Congress.
Ms. JACKSON LEE. Mr. Chairman, I thank the gentleman for yielding.
Mr. Chairman, I would say to my colleagues that this is about bad
medicine, not good medicine, and it is about undermining good
healthcare, as we have seen in the TrumpCare saga, causing some 49
million people to lose their insurance. Here we go again.
I would offer to say that the most difficult, hurtful, and harmful
aspect of this particular legislation is that it would make it more
difficult for plaintiffs to seek redress for medical injuries that have
been proven in court.
In addition, it proposes to make dangerous and potentially
unconstitutional changes to our Nation's Federal system, intruding on
State sovereignty, the very thing that Republicans seem to relish and
to support, because this bill attempts to preempt the several areas of
tort law that have been traditionally reserved to the States.
I would tell my good friends in Tennessee and West Virginia: Deal
with your States, just as other individuals deal with their own States.
This bill, as well, has a very difficult impact on medical
malpractice. Because it was written so vaguely, the broad language
sweeps into not only doctors and other medical professionals, but
hospitals and clinics and almost every entity that contributes in any
way to making any healthcare product or service available. That clearly
impacts the healthcare of Americans.
When your child is injured through no fault of their own or your own,
you need relief for that child. Interestingly enough, the American Bar
Association that represents all lawyers, trial lawyers, of which there
is an attempt to impugn their work, contempt for trial lawyers and the
good work that they do. But the ABA says they are opposed to this bill,
and they represent lawyers who fight every day to make sure the
injustices don't happen.
But here is the real cause of my angst for this particular bill:
``Medical Error Leaves Family With Unanswered Questions.''
``Olivia was a senior in high school in Santa Monica, California, an
accomplished scholar, actress, and musician who had earned early
acceptance to Smith College.''
The CHAIR. The time of the gentlewoman has expired.
Mr. CONYERS. Mr. Chairman, I yield the gentlewoman an additional 30
seconds.
Ms. JACKSON LEE. ``Olivia was born with a congenital heart
condition.''
She was going into college, but had a condition that caused her to go
into the hospital. When she went in, she had a small procedure. Her
vitals were dropping. Hospital staff waited more than 10 minutes before
attempting resuscitation, but it was too late. She remained in a coma
and died.
Mr. Chairman, I include the article in the Record.
Medical Error Leaves Family With Unanswered Questions
Research has found that 440,000 Americans die every year
from preventable medical errors each year.
Olivia was a senior in high school in Santa Monica,
California, an accomplished scholar, actress, and musician
who had earned early acceptance to Smith College.
Olivia was born with a congenital heart condition that was
monitored throughout her childhood.
The fall that Olivia was supposed to start college, she
underwent a routine procedure to help doctors figure out if
she could be considered for a surgery that would improve her
condition.
The procedure was completed without complications, but
while Olivia was still under anesthesia, a cardiology fellow-
in-training pulled the catheter lines, causing Olivia's heart
rate, pulse, and blood pressure to drop rapidly. Even though
her vitals were dropping, hospital staff waited more than 10
minutes before attempting resuscitation. But it was too late.
Olivia would never regain consciousness and died that
winter, never having lived her dream and attending college.
Her future was stolen from her, and immediately her family
tried to understand what had gone wrong. They began to ask
questions on how this could have happened, but they were
given very few answers from the hospital.
Finally, the hospital gave her family incomplete medical
records to sift through and find answers. They sought the
help of an attorney because, despite their best efforts, they
still did not fully understand what caused their daughter's
death. But due to California's out dated $250,000 cap on
medical negligence damages, it was nearly impossible to find
one.
Olivia's life was cut short by a preventable medical error,
and unfortunately, she is not alone. In the U.S., preventable
medical errors are the third leading cause of death.
Our focus should be on improving patient safety and
preventing medical errors, not limiting the rights of injured
patients and their families. Lawmakers who seek to limit the
accountability of health care providers are seeking to limit
our rights and our avenues to justice.
Don't our loved ones deserve better?
Ms. JACKSON LEE. Mr. Chairman, what do you want families to face--no
relief? Or do you want these constant errors to go unrecognized and
reconciled? This bill will do that by denying the ability.
It provides immunity for healthcare providers who dispense defective
or dangerous products. It makes it harder for victims to attain
adequate legal representation, and it imposes a risk or loss on victims
rather than wrongdoers. This bill undermines healthcare and it
undermines good healthcare.
Mr. Chair, I include in the Record a letter from the American Bar
Association opposing this bill.
American Bar Association,
Washington, DC, February 27, 2017.
Re Concerns Regarding H.R. 1215, the ``Protecting Access to
Care Act of 2017.''
Hon. Bob Goodlatte,
Chairman, Committee on the Judiciary, House of
Representatives, Washington, DC.
Hon. John Conyers, Jr.,
Ranking Member, Committee on the Judiciary, House of
Representatives, Washington, DC.
Dear Chairman Goodlatte and Ranking Member Conyers: On
behalf of the American Bar Association, which is the largest
voluntary membership organization of legal professionals in
the United States, consisting of more than 400,000 members
from all 50 states, the District of Columbia and other
jurisdictions, I am writing to express our opposition to H.R.
1215, the ``Protecting Access to Care Act of 2017.'' I
understand that your committee is scheduled to mark up this
bill as early as tomorrow.
For over 200 years, the authority to determine medical
liability law has rested in the states. This system, which
grants each state the autonomy to regulate the resolution of
medical liability actions within its own borders, is a
hallmark of our American justice system. The states also
regulate the insurance industry. Because of the roles they
have played, the states are the repositories of experience
and expertise in these matters. Therefore, the ABA believes
that Congress should not substitute its judgment, as is
proposed in H.R. 1215, for the systems that have evolved in
each state over time.
Specifically, I would like to share with you the ABA's
concerns and other views regarding key provisions in the
proposed legislation relating to damages, proportionate
liability, and contingent fees.
Damages. The ABA believes that compensatory damages should
not be capped at either the state or federal level, and, as a
result, we have serious concerns regarding Section 3(b) of
H.R. 1215 that would cap noneconomic damages for a
plaintiff's injuries at $250,000 regardless of the number of
parties against whom the action is brought or the number of
separate claims or actions brought with respect to the same
injury. For more than thirty years, the ABA has studied the
research on federal and state legislative efforts to impose
limits on noneconomic damages, including pain and suffering.
Empirical research has shown that caps diminish access to the
courts for low wage earners, like the elderly, children, and
women; if economic damages are minor and noneconomic damages
are capped, victims are less likely to be able to obtain
counsel to represent them in seeking redress.
Those affected by caps on damages are the patients who have
been most severely injured by the negligence of others. These
patients who reside in communities around the country should
not be told that, due to an arbitrary limit set by members of
Congress in Washington, DC, they will be deprived of the
compensation determined by a fair and impartial jury. The
courts already possess
[[Page H5267]]
and exercise their powers of remittitur to set aside
excessive jury verdicts, and that is the appropriate solution
rather than an arbitrary cap. For these reasons, the ABA
opposes those provisions in H.R. 1215, such as Section 3(b),
which would place a dollar limit on recoverable damages and
operate to deny full compensation to a patient in a medical
liability action.
Proportionate Liability. Section 3(d) of H.R. 1215 would
create a ``fair share rule'' under which each party would be
liable only for its share of any damages, and, as a result,
the provision would preempt existing state laws that provide
for joint and several liability in medical liability cases.
The ABA believes that, at the state level, the laws providing
for joint and several liability should be modified to
recognize that defendants whose responsibility is
substantially disproportionate to liability for the entire
loss suffered by the plaintiff should be held liable for only
their equitable share of the plaintiff's noneconomic loss.
Although the ABA supports this principle and encourages other
improvements to the tort laws at the state level, it opposes
federal preemption of the medical liability laws of the
states and territories. Therefore, the ABA opposes Section
3(d) to the extent that it would preempt existing state laws
and to the extent that it would apply a proportionate
liability rule to all damages, not just the plaintiff's non-
economic damages.
Contingent Fees. Section 4(a) of H.R. 1215 would empower a
court to reduce the contingent fees paid from a plaintiff's
damage award to an attorney, redirect damages to the
plaintiff, and further reduce contingent fees in cases
involving minors and incompetent persons. The ABA opposes
sliding scales for contingent fees and other special
restrictions on such fees. In 1985, the ABA created a Special
Committee on Medical Professional Liability (``Special
Committee'') to study the initiatives proposed at that time
in an Action Plain of the American Medical Association
Special Task Force on Professional Liability and Insurance.
Among the initiatives was a recommendation of sliding scales
on contingent fees, having effects comparable to the caps
proposed here. After review, the Special Committee concluded
the following:
``A sliding scale for contingency fees in medical
malpractice litigation may very well reduce total awards for
patient-victims by depriving them of representation by a
trial lawyer sufficiently skilled at obtaining the highest
appropriate award. Mandatory sliding scale systems could also
inhibit claimants' access to the court system by limiting the
availability of counsel. And imposing sliding scales only in
medical malpractice cases would, in effect, create different
level of skills among available counsel for plaintiffs in
medical malpractice cases from those available to claimants
in other tort cases.''
As a result of this finding, the ABA adopted a policy in
1986 that ``no justification exists for imposing special
restrictions on contingent fees in medical malpractice
actions.'' Therefore, the ABA opposes the limits on
contingent fees contained in Section 4 of H.R. 1215.
The American Bar Association remains committed to
maintaining a fair and efficient justice system where victims
of medical malpractice can obtain redress based on state
laws, without arbitrary or harmful restrictions. We offer
these perspectives for your consideration as you mark up H.R.
1215.
Sincerely,
Thomas M. Susman,
Director, Governmental Affairs Office.
Mr. CHAIR, as a senior member of the Judiciary Committee, I rise in
strong opposition to H.R. 1215, the so-called ``Protecting Access to
Care Act of 2017.''
I oppose this misguided and ill-considered legislation for several
reasons.
Specifically, the bill before us should be rejected because:
1. H.R. 1215 violates state sovereignty;
2. H.R. 1215 applies well beyond medical malpractice;
3. Unjustifiably caps noneconomic damages, which will have a
disproportionately adverse impact on women, the poor, and other
vulnerable groups.
4. Provides unjustifiable immunity for health care providers who
dispense defective or dangerous pharmaceuticals or medical devices;
5. Imposes an excessively short statute of limitations period;
6. Makes it harder for victims to obtain adequate legal
representation; and
7. Inequitably imposes the risk of loss on victims rather than
wrongdoers.
For over 200 years, the authority to determine medical liability has
rested in the states.
This system, which grants each state the autonomy to regulate the
resolution of medical liability actions within its own borders, is a
hallmark of our American justice system.
H.R. 1215 would preempt state law in all 50 states with a rigid,
uniform set of rules designed to make it more difficult for malpractice
victims to obtain relief in the courts.
Victims injured by the negligent conduct of others, who have lost
limbs, suffered traumatic brain injury, or lost their vision following
medical procedures should not be subject to additional burdens of a
possible limited recovery, currently available under state patients'
bills of rights and other protections under the Affordable Care Act.
The definitions in H.R. 1215 are written in such vague and broad
language as to potentially sweep in not only doctors and other medical
professionals, hospitals and clinics, but also every entity that
contributes in any way to making any health care product or service
available, including insurance companies, pharmaceutical manufacturers,
health product manufacturers, pharmacists, nursing homes, assisted
living facilities, and mental health treatment centers, and drug and
alcohol rehabilitation facility, among others.
H.R. 1215 will do nothing to strengthen protections for patients.
It goes in the opposite direction, by excusing the health care
industry from accountability for carelessness, and shifting the burden
for shouldering the consequences of preventable medical injury to the
injured patients, their families, their employers, their insurance
companies, and taxpayers.
Current provisions of the Affordable Care Act prohibit insurance
companies from denying coverage for preexisting conditions, mandate
coverage for young adults and children under the age of 26, and secure
lifetime coverage caps, ensuring patients receive the care they need.
Empirical research has shown that caps on damages, such as those
envisioned by H.R. 1215, diminish access to the courts for the most
vulnerable, such as low wage earners, like the elderly, children, and
women.
The bill arbitrarily caps so-called ``non-economic loss''--which
sweeps in essentially everything that is not loss of salary or
additional medical expenses--at $250,000 for the patient's lifetime,
punishing those patients with the most devastating, life-altering
injuries.
The bill forces the injured patient to take the amounts received for
future expenses resulting from the injury in a ``structured
settlement,'' which may not match up with the patient's actual needs as
they arise, and would further reduce the amount the careless health
care provider actually pays.
Preventable medical errors are the third-leading cause of death in
the United States, with an estimated 440,000 deaths each year following
a medical error or hospital-caused infection during a hospital stay.
Addressing this problem must be a national priority.
And although policies to promote and require safer practices are key
to this effort, that is insufficient.
We cannot assign a government monitor to every hospital operating
room and every doctor's office.
Effective protection should also include enabling patients and their
families to hold health care providers accountable for errors that
cause harm.
H.R. 1215 would unfortunately take several major steps backward from
this goal.
The bill twists important protections found in many state laws into
an additional legal hurdle.
An extended statute of limitations protection allows patients who do
not discover their injury until much later, sometimes many years after
the medical procedure or intervention, to still have a change to seek
legal help.
But in the bill, the period in which an injured patient can seek
legal help is actually shortened to one year.
The bill cuts off a patient injured as a young child if their family
fails to bring legal action on their behalf, long before they are old
enough to legally act on their own behalf.
This legislation would impose various restrictions on medical
malpractice lawsuits, causing these restrictions to apply regardless of
how much merit a case may have, the negligence at issue, or the
severity of the issue.
If economic damages are minor and noneconomic damages are capped,
victims are less likely to be able to obtain counsel to represent them
in seeking redress in these personal injury malpractice cases that
often operate under contingency fee.
Those affected by caps on damages are the patients who have been most
severely injured by the negligence of others.
These patients who reside in communities around the country should
not be told that, due to an arbitrary limit set by members of Congress
in Washington, DC, they will be deprived of the compensation determined
by a fair and impartial jury.
The courts already possess and exercise their powers of remittitur to
set aside excessive jury verdicts, and that is the appropriate solution
rather than an arbitrary cap.
I am concerned that H.R. 1215 would put patient safety at higher
risk, by significantly undermining the accountability of those who
provide patients with medical care.
H.R. 1215 undercuts patients in situations in which carelessness or
misconduct by several health care providers combines to injure the
patient.
It arbitrarily ``divides'' blame among those actors and then if one
of them evades accountability for any reason, the others who caused the
injury are excused from having to make up the difference, and the
injured patient is short-changed.
[[Page H5268]]
H.R. 1215 shifts accountability away from the careless health care
providers who caused the injury and onto ``collateral sources,'' such
as the patient's insurance company or employer, or the government, that
pay for part of the patient's medical expenses or other expenses
resulting from the injury.
In effect, these other sources provide involuntary free insurance to
careless health care providers.
The bill excuses doctors and other health care providers from any
responsibility of looking into the safety and effectiveness of any
medication or medical product, so long as it has been approved by the
FDA.
Accordingly, I strongly oppose H.R. 1215 for these and many more
reasons and urge my colleagues to reject this bill.
Mr. KING of Iowa. Mr. Chairman, I yield myself 5 minutes.
Mr. Chairman, first of all, the statement that this bill caps or
limits States on economic or noneconomic damages is incorrect. In fact,
I would point the gentlewoman from Texas to page 6 of the bill, that
says, under State Flexibility, that specifies a particular monetary
amount of economic or economic damages, there is no provision in this
section that shall be construed to preempt State law. We wrote that
specifically to respect the States' rights.
I recall a number of these pieces of legislation that have come
before this Congress. I can remember it back at least until 2007. I was
uneasy about the constitutionality because it did reach in and preempt
State law.
And I am a respecter of States' rights, but we have a Federal
interest in healthcare. That is the provision that is written into the
bill. If there are Federal dollars involved, if it is a Federal
program, then the Federal Government has an interest in limiting these
damages.
We capped the damages in this bill, not the economic damages. Those
real damages that are economic damages are fully compensated, without
limit, without cap, and without the interference of this law, unless
States choose to cap economic damages.
Noneconomic damages, however, are capped at $250,000; and that
$250,000 cap is something that has existed in California State law for
more than 40 years, signed into law by the very durable Jerry Brown.
But if the States want to change that, if they want to raise the cap
beyond $250,000, that is their right to do so. We specify that in the
bill.
I would like to discuss a need for this bill. It is necessary to
preserve fiscal sanity in Federal healthcare policy. And I would like
to point out, also, at the outset that this bill only applies to claims
concerning the provision of goods and services for which coverage is
provided in whole or in part by a Federal program, a Federal subsidy,
or a Federal tax benefit. It is a clear, clear, Mr. Chairman, Federal
nexus. Wherever Federal policy affects the distribution of healthcare,
there is a clear Federal interest.
So, the bill's commonsense reforms, which have been the law in
California for over 40 years and that the CBO has scored a couple of
times here--the previous score was $54 billion; this score is $50
billion--is over $50 billion in savings to the people who are paying
for healthcare in this country, and that includes our taxpayers and the
healthcare users.
But the $250,000 cap is reasonable. It has sustained itself over
those 40 years in California, and it is good enough for other States to
emulate.
When I hear some pushback from Texas, I am kind of thinking they want
to keep the system they have, and they don't want to have to compete
with the rest of the country. I think we might lose a vote or two to
from Texas on that alone: We have ours; we don't want America to have
anything like that because then we have to compete with all of America.
This bill will allow courts to require periodic payments for future
damages instead of lump sum awards. That helps limit bankruptcies so
plaintiffs that might receive only pennies on the dollar can be
prevented. And it includes provisions creating a ``fair share'' rule by
which damages are allocated fairly in direct proportion to fault. That
has got to help a lot when you are thinking about the cost of
healthcare.
The bill does all this without in any way limiting compensation for
100 percent of the plaintiffs' economic losses, which include anything
to which a receipt can be attached, including all medical costs, lost
wages, future lost wages, rehabilitation costs, or any other economic
out-of-pocket loss suffered as a result of a healthcare injury.
Far from limiting deserved recoveries in California, these reforms
have led to medical damage awards in deserving cases, Mr. Chairman, in
the area of the $80 million to $90 million range.
The Washington Post reported a few months ago: ``U.S. healthcare
spending . . . is projected to accelerate over the next decade. . . . A
study by the Centers for Medicare and Medicaid Services projects that
the average growth in health spending will be even faster in 2016'' on
up through the decade of 2025. ``The projections are based on an
assumption that the legislative status quo will prevail.''
If we don't change the law, we are going to see these costs going up.
As Nate Silver pointed out in The New York Times, not my favorite
document: ``All the major categories of Federal Government spending
have been increasing relative to inflation. But essentially all of the
increase in spending relative to economic growth and the potential tax
base has come from entitlement programs, and about half of all of that
has come from healthcare entitlements specifically.''
Studies show that as healthcare costs rise, wages fall; and the more
companies pay in healthcare costs, the less they can pay in wages. So
when healthcare costs increase and that growth increases, wages
stagnate; and when healthcare costs growth slows, wages go up.
Members who want to see wages increase should vote for this bill--it
is good for the healthcare workers--because one of the drivers of
higher healthcare spending is so-called defensive medicine.
The CHAIR. The time of the gentleman has expired.
Mr. KING of Iowa. Mr. Chairman, I yield myself an additional 2
minutes.
That is a very real phenomenon confirmed by countless studies in
which healthcare workers conduct many additional costly tests and
procedures with no medical value. That is charged to our Federal
taxpayers, and it is simply to avoid excessive litigation costs.
A survey published in the Archives of Internal Medicine found that 91
percent of the over 1,000 doctors surveyed ``reported believing that
physicians order more tests and procedures than needed to protect
themselves from malpractices suits.''
The study also asked: ``Are protections against unwarranted medical
malpractice lawsuits needed to decrease the unnecessary use of
diagnostic tests?'' And the answer, an identical number: 91 percent of
the doctors surveyed agreed.
But there is one Newsweek reporter who described the personal
experience of individual doctors this way: ``Typical was one doctor,
who had a list as long as my arm of procedures ER docs perform . . .
for no patient benefit. They include following a bedside sonogram . . .
with an ``official'' sonogram because it's easier to defend yourself to
a jury if you've ordered the second one; a CT scan for every child who
bumped his or her head, to rule out things that can be diagnosed just
fine by observation; X-rays that do not guide treatment, such as for a
simple broken arm; CTs for suspected appendicitis that has been
perfectly well diagnosed without it.
``Although doctors may hate practicing defensive medicine, they do it
so they don't get sued. . . . Nationwide, physicians estimate that 35
percent of diagnostic tests they ordered were to avoid lawsuits, as
were 19 percent of hospitalizations, 14 percent of prescriptions, and 8
percent of surgeries. . . . All told,'' according to the Newsweek
article, $650 billion in unnecessary care every year was provided by
these doctors. Another ER doctor said he ordered 52 CT scans in one 12-
hour shift for a total of $104,000 in a single day.
These are the things we are dealing with, Mr. Chairman.
The CHAIR. The time of the gentleman has again expired.
Mr. KING of Iowa. Mr. Chairman, I yield myself an additional 1
minute.
One of the most recent studies, published a few months ago in the
Journal of the American College of Radiology studied the effects of
tort reform on
[[Page H5269]]
just radiographic tests alone and found that there were ``2.4 million
to 2.7 million fewer radiographic tests annually attributed to tort
reforms.''
Just imagine what savings would occur if such reforms were attached
to all Federal healthcare programs, as this bill would do.
{time} 1445
It causes me to think of an orthopedic surgeon who told me that he
can diagnose an ACL almost every time, yet he is compelled by his
liability insurance to do additional tests, 97 percent of which are
unnecessary.
That is the kind of thing we are dealing with, Mr. Chairman, and it
is time for us to bring sanity to this litigation that we have in this
country.
I reserve the balance of my time.
Mr. CONYERS. Mr. Chairman, I yield 30 seconds to the gentlewoman from
Texas (Ms. Jackson Lee).
Ms. JACKSON LEE. Mr. Chair, I thank the gentleman very much. I think
the question to the gentleman from Michigan, and the gentleman's
comments from Iowa, is the question of good medicine, and additional
tests may, frankly, just be good medicine.
Maybe, Mr. Chair, Mr. Conyers would agree that we should gather about
insurance reform and capping premiums so that we can help our doctors.
And I would assure you that they would be very happy on that.
But to the gentleman's point, I'm sorry to say he was incorrect,
because we note that there are almost 20 States that have a variety of
noncaps on certain aspects, and now the Federal intrusion will come in
and now tell them where they do not have caps, that they have to have
caps.
In fact, he is incorrect, and this bill does skew the medical service
or medical treatment in our States.
Mr. CONYERS. Mr. Chair, I yield 2 minutes to the gentleman from Rhode
Island (Mr. Cicilline), a distinguished member of the House Judiciary
Committee.
Mr. CICILLINE. Mr. Chair, I thank the gentleman for yielding.
I rise in strong opposition to H.R. 1215, which should be more
accurately called the taking away access to care and justice act. This
bill will do nothing to strengthen patient protections and will make
careless healthcare providers less accountable.
It will severely limit when an injured person is allowed to bring a
healthcare lawsuit by shortening the time that injured people have to
seek relief. It will also impose a one-size-fits-all cap on how much
compensation victims of medical malpractice can receive for pain and
suffering, regardless of the severity of a person's injury--in order to
benefit insurance companies and wrongdoers.
This cap even applies to intentional acts of misconduct. This bill
would unfairly limit a patient suing a healthcare provider for sexual
assault, as well as a veteran who has received substandard medical
care. The bill is written so broadly, it shields both negligent doctors
and manufacturers of dangerous drugs and medical devices from
liability.
H.R. 1215 is before us at a time when Republicans in the Senate are
working hard to pass a bill that eliminates health coverage for 22
million people in order to give the wealthiest Americans and insurance
companies a huge tax cut. The American people deserve better than this.
Our legal and healthcare system should work for the benefit of
hardworking Americans, the people we represent, not for the powerful
special interests. Republicans are chomping at the bit for the
opportunity to eliminate health coverage for honest, hardworking
Americans and are making deep cuts to Medicaid just so they can give
the richest people in this country a $600 billion tax cut.
And now, they want to prevent injured people from getting justice
when they are hurt. Middle class families need to see that we are on
their side. They don't need bills like H.R. 1215, which will rig the
healthcare and justice systems against them.
I strongly urge my colleagues to vote ``no'' on H.R. 1215.
Mr. KING of Iowa. Mr. Chairman, I yield myself 1 minute.
Mr. Chairman, it is just interesting to me to hear this discussion
about the Senate addressing the healthcare situation in America. I
stood on this floor time, after time, after time, and in 2010, March 23
of 2010, the final passage of ObamaCare was sent out of the Congress to
the President of the United States, who signed it immediately before
the sun could come up in the morning.
And I was sick at heart at what happened to our Constitution, our
rule of law, our individual rights. And now we have a mess of a
healthcare system in America. This is a component of the fix. We don't
have a single Democrat in the House or Senate that is willing to even
commit to work with us to put up a single vote to try to improve the
healthcare system in America.
They made a mistake, and they passed ObamaCare. They served it over
to us and said: Now you fix it. Well, we are going to declare it a mess
no matter what you do. We are going to fix it. It is going to take some
time.
I reserve the balance of my time.
Mr. CONYERS. Mr. Chairman, I am pleased to yield 2 minutes to the
gentleman from Florida (Mr. Deutch), a distinguished member of the
Judiciary Committee.
Mr. DEUTCH. Mr. Chair, I thank my friend, the ranking member from
Michigan.
Mr. Chairman, I am thrilled to hear my colleague talk about the
Constitution. I am sorry that the Constitution that he is talking about
doesn't include the right to a jury trial because that is the
Constitution that I read.
And this piece of legislation, H.R. 1215, will threaten that
constitutional right. We have been told there is nothing to worry about
in this bill because it will cover 100 percent of economic costs--
anything that comes with a receipt, we were told.
I am going to tell you what is wrong with this bill and the stories
of four people: a young child who goes in for a simple procedure and
leaves the hospital paralyzed; a young adult who requires the
amputation of his left leg, but the doctor amputates the right leg and
he leaves the hospital with neither; the woman whose physician used his
power to sexually assault her while she is sedated; and the rape of a
nursing home patient by a trusted healthcare provider.
Mr. Chairman, there will be no receipts that will cover the costs
that those four individuals would suffer for the rest of their lives
that could be turned in, compensated, and subject to this artificial
cap.
Why is it that my colleagues believe that they are in a better
position to determine how those wronged individuals should be
compensated for the atrocities that happened to them instead of
allowing a jury of their peers do the same?
This bill is not meant to help reduce costs. This is an assault on
injured people. This is an assault on those who value access to the
courtroom in order to see justice.
I urge my colleagues, in the strongest possible terms, to reject this
anticonsumer, this terrible piece of legislation.
Mr. KING of Iowa. Mr. Chairman, I yield myself 1 minute.
Mr. Chairman, as you listen to the stories that are here that have
been delivered by the gentleman from Florida, I am wondering why we
haven't heard these stories come out of California. Because this
legislation essentially mirrors California legislation. That was the
model that we followed. And they have had over 40 years to repeal or
amendment it, and it has been sustainable.
There is a right to a jury trial under this. It is just that there
are caps that are set, that are reasonable caps, and the States are
free to change those caps up or down.
So I don't quite follow this, but I would say someone who is raped in
a nursing home is not covered under this. This legislation doesn't
affect it at all. It has to have an affect by a diagnosis, a
prevention, or a treatment of a disease impairment; and a rape is not
that. So it would not be covered under this legislation.
Mr. Chairman, I know that my opposition would like to have this
legislation killed. I would just point out something that I heard on
the floor of the House here about 10 years ago, and it was this: We can
pass this legislation, but the Senate may not pass it. And I would urge
them to take it up. There is a special interest, and it is the Trial
Lawyers Association. They are the ones who will not come out of this
very well.
[[Page H5270]]
Mr. Chair, I reserve the balance of my time.
Mr. CONYERS. Mr. Chairman, I yield 1 minute to the gentleman from
Tennessee (Mr. Duncan).
Mr. DUNCAN of Tennessee. Mr. Chairman, I rise in opposition to this
bill. As the House Liberty Caucus wrote, this bill violates the 10th
Amendment that conservatives have always supported.
More troubling is the way this bill is worded. It could lead to what
the Liberty Caucus describes as a ``massive expansion of Federal
authority'' because it could make almost every medical malpractice case
a Federal case. Every case should not be a Federal case.
The States have already put pretty severe limits on medical
malpractice cases. I have two other problems with this bill. I am in my
29th year in Congress. The doctors were asking for this $250,000 limit
then, too. $250,000 29 years ago is certainly not $250,000 today.
Finally, this bill, in the end, is saying there are really no limits
on suits against 99.8 percent of the people I represent, but we are
going to have special protection for this one very respected group of
people. Conservatives have traditionally had more faith in people than
in government.
I was a judge for 7.5 years before coming to Congress. Conservatives
used to believe strongly in the jury system, and still should believe
in that today.
Mr. KING of Iowa. Mr. Chairman, I yield myself 1 minute.
Mr. Chairman, I point out also that this bill keeps these cases in
State court. It doesn't move them to Federal court. Previous
legislation that has been brought to this floor, a decade or so ago,
did move a lot of these cases to Federal court. But it is carefully
drafted to keep this with the maximum amount of respect for States'
rights that can be held and still have a Federal interest.
There has to be a Federal interest in every dollar involved in this.
In every single case, there has to be Federal dollars involved in it,
or this bill wouldn't affect it at all. And so I am one who is also a
great respecter of States' rights. And in this legislation, as drafted,
there are provisions in there over and over again that protect as many
of the States' rights as can be. And if you take the other side of this
argument, then it is far stronger that the right of the Federal
Government would be usurped by the States if we don't have this
legislation.
That is what is taking place now--States that choose not to make a
decision, not to set caps, and we are seeing huge settlements going on
around the country. This is what we want to end, so that we can save
the $50 to $54 billion for the taxpayers. But the thing that is even
worth more than this is, how much of that $650 billion in defensive
medicine will no longer be used in this country, and how much safer and
less expensive will our healthcare be in America?
I reserve the balance of my time.
Mr. CONYERS. Mr. Chairman, I yield myself such time as I may consume.
I just have to add here that H.R. 1215 deeply intrudes on States'
sovereignty. In particular, H.R. 1215 preempts State law governing
joint and several liability, the availability of damages, the ability
to introduce evidence of collateral source benefits, attorneys' fees,
and periodic payments of future damages.
Members should not be fooled by assertions that the bill preserves
State law. In fact, the rule of construction contained in the bill
expressly states that it preempts State law, except in very limited
circumstances where State law is more favorable to defendants.
Mr. Chair, I yield 2 minutes to the gentlewoman from Washington (Ms.
Jayapal).
Ms. JAYAPAL. Mr. Chair, I thank the gentleman for yielding.
Mr. Chair, I rise today to express my strong opposition to H.R. 1215.
First of all, my home State of Washington is one of those States where
our Supreme Court has ruled and said that caps are not constitutional.
So this bill is an intrusion of our States' rights.
This bill also clearly puts the interests of big corporations over
everyday people and sends a signal to medical and health providers that
they can act irresponsibly, perhaps to make more money, and get away
with it.
Let me give you a very real example of what happens when hospitals
put profit over people. The neurology program at Swedish Medical
Center-Cherry Hill in Seattle is under investigation for negligent care
arising out of a program designed to incentivize neuroscience doctors
to take on heavy caseloads of complicated cases that lead to serious
errors and even death.
One of the patients was Talia Goldenberg, a talented and vibrant
young woman. Talia went in for a cervical spinal fusion with a
neurosurgeon who had been embroiled in numerous investigations. And as
a result of gross medical malpractice, Talia died.
According to a Seattle Times investigation, numerous problems
surfaced around her care--or lack thereof--and attention to the surgery
and medical complications that arose from it.
When Talia went in for her surgery, she was filled with hope. In
thinking about the life that she might have after surgery, she wrote
this: So who am I? I am an artist, a dreamer. I am a stationary biker.
I am a woman, a girl, a person. I am a skier. I am an aspiring pole
vaulter. I am a reluctant, yet faithful, believer of the power of lucky
underwear. I am someone with a voice.
Talia died. She is one of the many tragic instances of people losing
their lives to medical malpractice, and, even in my own office, two of
my staffers have lost three of their grandparents due to medical
malpractice. We have to make sure that we have consequences when we
entrust our healthcare to someone, and there are grave errors.
For the sake of Talia and so many others like her who have dreams
that are violated by preventable errors, we must defeat this bill.
A ``no'' vote is a vote for the American people.
{time} 1500
Mr. KING of Iowa. Mr. Chairman, I yield myself 1 minute.
Mr. Chairman, I was a little surprised to hear that a judge in the
State of Washington had ruled that caps are unconstitutional. In fact,
it is kind of curious to hear the same arguments--or conflicting
arguments coming out of the other side. One of them says it is the
States' rights to be able to set the caps. The other one says it is
unconstitutional to set the caps. So I think that conflict, it would be
good if that were resolved.
I think, in either case, that I disagree with both of those
positions, Mr. Chairman.
If a Washington State judge says caps are unconstitutional, on what
basis?
That would say, then, that a State legislature couldn't cap them;
Congress can't cap them; that this is essentially, then, a function of
the courts.
I remember a decision that came out of the State of Washington. It
was a Federal judge that essentially ruled that the President's
executive order on, let's say, migrants coming into the United States
was unconstitutional, even though Congress specifically granted the
authority to their President. So I am not going to defer to a single
judge's opinion in that fashion.
I would point out, too, that we do protect States' rights. There is
provision in this bill after provision, and it is titled State
Flexibility. Look through their and find all the provisions of State
Flexibility where we respect States' rights. And it is written as
carefully as it can be to respect the maximum amount of States' rights.
Mr. Chairman, I reserve the balance of my time.
Mr. CONYERS. Mr. Chairman, I yield 2 minutes to the gentleman from
New York (Mr. Jeffries).
Mr. JEFFRIES. Mr. Chairman, let's be clear: this bill has nothing to
do with litigation reform. It has nothing to do with a good faith
attempt to improve our healthcare system.
In fact, this bill was described as phase 3 of an effort to improve
our healthcare by the majority leader on the other side of the aisle. I
put out a search committee. I still can't find phase 1 or phase 2. It
has nothing to do with reforming our healthcare system.
This bill is an unprecedented attack on States' rights. It is a wolf
in sheep's clothing. It is a solution in search of a problem. It is
nothing more than a reckless legislative joyride guaranteed to crash
and burn on the American people.
[[Page H5271]]
This bill, if enacted, will hurt working families, middle class
people, senior citizens, the poor, the sick, the afflicted, veterans,
and nursing home residents.
The American people deserve a litigation system that works for
everyone, not simply the wealthy and the well-off. The American people
deserve a litigation system that puts the public's interest ahead of
special interests. The American people deserve a litigation system that
promotes public health, not just excessive wealth.
This bill fails on all of those counts. It is mean-spirited, it is
cruel, it is heartless. Mr. Chairman, that is why it must be defeated.
Mr. KING of Iowa. Mr. Chairman, I yield myself 15 seconds.
I would just point out to the body that I didn't hear a single fact
in the previous 2 minutes. It is all opinion and hurled accusations.
But I think it is important for this body to deliberate over the facts
themselves, and I have delivered a lot of that data.
Mr. Chairman, I reserve the balance of my time.
Mr. CONYERS. Mr. Chairman, I yield 2 minutes to the gentleman from
Maryland (Mr. Raskin), a distinguished member of the House Judiciary
Committee.
Mr. RASKIN. Mr. Chairman, the floor leader has invited us to stick to
the facts, so I want to stick to the facts in order to clear up some of
the propaganda I have heard today for this terrible bill.
First of all, it has nothing to do with ``groundless cases or
frivolous claims,'' because the draconian new limits proposed in their
legislation applied only to valid claims in serious cases. It has
nothing to do with groundless cases and frivolous claims. That is an
irrelevant distraction from their own legislation, which is an attempt
to reduce what you can recover with a perfectly valid claim when a jury
has awarded you damages.
Number two, the floor leader says that it would not apply in the case
of someone being raped in a nursing home. Perhaps he thinks it wouldn't
apply to my constituent, a 15-year-old girl who got raped by her
dentist.
But as I read the bill, it says, ``healthcare lawsuit means any
action against a healthcare provider,'' and that includes anyone who is
providing healthcare. So if a nursing home is providing healthcare or a
dentist is providing healthcare, they would be covered by the law.
But I would invite the floor leader to clear this up, because if he
is representing now that rapes of patients in a nursing home or in a
dentist's office don't count, that should be definitive legislative
history that we establish today because we tried to amend the bill to
that effect in committee and the majority voted it down. But he has
just represented that a rape would not count, and I want him to
definitively commit whether or not a rape by a healthcare provider
would count.
Finally, the gentleman from Iowa says it won't preempt the States, it
will not impose Federal laws because it is still in the State courts.
It is still in the State courts, but Federal law now applies.
There are 28 States which have said that you cannot limit people's
access to noneconomic damages when a jury wants to award them those
damages for pain and suffering. They have either said in their
Constitution there can be no limits at all, or the legislatures have
said it, or the State supreme courts have struck it down. And their
legislation is a bulldozer that will run over the laws of 28 States.
And they claim, Mr. Chairman, that somehow they are acting in the
guise of federalism. They are destroying federalism. That is why I was
so happy that Mr. Duncan, a former State Judge from Tennessee, and a
member of the GOP majority, got up to say this is antithetical to
everything they stand for.
Mr. KING of Iowa. Mr. Chairman, I yield myself 1 minute.
Mr. Chairman, I would point out, first of all, the gentleman from
Maryland must know that this isn't a criminal statute. This is civil
law. It doesn't have anything to do with crime or criminal law, so
let's keep our discussion to the civil actions that we are discussing
here.
It is not propaganda. It is facts that we have delivered on this
side. So I want to put this into the Record verbatim, Mr. Chairman.
Regarding cases of rape or physical abuse, H.R. 1215 does not cover
such cases at all. That is because the bill only applies to medical
malpractice claims based on the provision or use of healthcare
services; and healthcare services are defined in the bill as things
related to the diagnosis, prevention, or treatment of any human disease
or impairment.
Clearly, rape or any other physical abuse, and the neglect of basic
sanitary conditions, is not related to the diagnosis, prevention, or
treatment of any human disease or impairment. So in cases involving
rape or physical abuse by anyone, or neglect of basic needs, the bill
simply does not apply.
But it does respect States' rights. It is carefully written to
protect States' rights. It is a significant and huge improvement upon
some efforts we have seen in the past, and one of those reasons is
because many of us care about States' rights, and we pay attention to
the Constitution. There is a Federal nexus in everything that goes on
here, and States are not limited from raising caps on economic or
noneconomic damages or lowering those caps. We respect the States in
every way possible, and still get a positive result out of H.R. 1215.
Mr. Chairman, I reserve the balance of my time.
Mr. CONYERS. Mr. Chairman, I yield 30 seconds to the gentleman from
Maryland (Mr. Raskin).
Mr. RASKIN. Mr. Chairman, first of all, there are only three States
in the Union that set the limit where they want Congress to set it for
every State, which is $250,000. They are overriding the laws of 28
States which allow for unlimited damages.
Number two, the gentleman from Iowa says: Well, a rape is criminal,
so it is not related.
But you can bring civil actions against the same conduct that
constitutes a crime. So if you look at your own bill, it says any
theory of liability, so that would include intentional acts.
Now, again, Mr. Chairman, is the majority representing that this will
not apply to intentional torts?
Because they were very definitive in committee that it would apply to
intentional torts, including rapes and assaults. So I would like to
know: Does it apply or does it not?
Because this is a critical matter, because people have been--we are
not talking about the good doctors. Everybody loves the good doctors.
We are talking about doctors or nursing home providers or dentists who
rape their patients and assault their patients.
They would be limited--juries could try to give millions of dollars,
but their legislation would limit you to $250,000 in noneconomic
damages. We have got to clear this up, Mr. Chairman.
Mr. KING of Iowa. Mr. Chairman, I reserve the balance of my time.
Mr. CONYERS. Mr. Chairman, I yield 1 minute to the gentlewoman from
Oregon (Ms. Bonamici).
Ms. BONAMICI. Mr. Chairman, I rise today in strong opposition to H.R.
1215, a misguided and misnamed bill that will limit access to justice,
especially for women.
The bill caps the amount of compensation a jury can award to a victim
who suffers medical injuries, even catastrophic injuries, because it
creates a lifetime cap of $250,000 for noneconomic damages.
This means that women, or men, for that matter, who are at home
raising their families, or children who are victims of devastating
medical malpractice are told that the value of their injuries and their
lives is less than that of their wage-earning counterparts. That is
patently unfair. It disproportionately penalizes people who are family
caregivers--a very important job, but one that does not involve wages.
Furthermore, many women across the country have been victims of
medical malpractice that has left them unable to bear children.
How can we say to these women that the loss they have suffered, the
loss of an opportunity to be a mother is without value?
That is unacceptable, and it is cruel.
Many medical errors are preventable. We should be focusing on
improving patient safety, not taking away rights from victims.
I oppose this bill, and I will continue to fight back against
attempts to limit access to justice for those who need it most. Please
join me in voting ``no.''
[[Page H5272]]
Mr. KING of Iowa. Mr. Chairman, I yield myself 30 seconds.
Mr. Chairman, I have heard the gentleman from Maryland say that this
legislation would override the laws of 28 States. That was a surprise
to me to hear that when I heard the number before Rules Committee,
which I think I actually recall it was 27. But 28, 27, it doesn't
override laws. It is the absence of laws.
There are States that don't have caps. That is what we are talking
about here. So it is not overriding State laws in States where there
are no laws. It simply is setting a Federal foundation and a guideline
for them.
And if I am in a State legislature, I know I have the authority to
raise or lower the cap on economic and on noneconomic damages, and that
my laws are not being overridden, but they are being provided by the
wisdom of the American people, then I am going to be thankful I have
that to work with until I can amend it.
Mr. Chairman, I reserve the balance of my time.
Mr. CONYERS. Mr. Chairman, I refer my colleague, the floor leader on
the other side to section 9 of the bill. We have just looked at it.
Mr. Chairman, I yield 1 minute to the gentlewoman from California
(Ms. Barragan).
Ms. BARRAGAN. Mr. Chairman, I rise today in opposition to H.R. 1215
and to express my extreme concerns with this bill.
I am from California, and I am an attorney, and I can tell you that
this bill goes beyond medical malpractice. It goes way beyond that. It
includes cases involving unsafe drugs and nursing home abuse and
neglect. That is not happening in California.
If passed, it would prevent cases where seniors have endured tragic
deaths and injuries, like an 88-year-old California woman who was
sexually assaulted by her nursing assistant after she suffered a
stroke, resulting in lifelong mental and physical pain.
Over 80 senior and healthcare groups, including the American
Association for Justice and the California Advocates for Nursing Home
Reform, have come out against this bill. They recognize that we need to
protect our vulnerable seniors.
Mr. Chairman, I urge my colleagues to oppose this bill.
Mr. KING of Iowa. Mr. Chairman, I reserve the balance of my time.
Mr. CONYERS. Mr. Chairman, I yield 1 minute to the gentleman from
Pennsylvania (Mr. Cartwright).
Mr. CARTWRIGHT. Mr. Chairman, here we are dealing with some amount of
irony with H.R. 1215. The year 1215 was the year the Magna Carta was
signed, something that created the seeds of the American right to jury
trial, for Heaven's sake.
You know, we were pleased to hear Representative Duncan from
Tennessee say: ``Conservatives believe strongly in the jury system.''
And I do, too, and Americans do, too. Our Founding Fathers believed in
it.
Here in America, where we trust juries to decide life and death for
criminal defendants, why wouldn't we trust them to set a proper and
fair dollar amount on a malpractice case?
By definition, these are meritorious cases, cases where there was
actual negligence, actual recklessness, actual intentional harm by
healthcare providers or nursing homes.
{time} 1515
But maybe most importantly, none of us, nary a soul in this House
would deny that standing up for veterans and our military families is a
core value for all of us. This is a bill that prevents accountability
for harm done to military and veterans of the VA system.
Mr. KING of Iowa. Mr. Chairman, I reserve the balance of my time.
Mr. CONYERS. Mr. Chairman, I yield 1 minute to the gentleman from
Maryland (Mr. Raskin).
Mr. RASKIN. Mr. Chairman, I thank Mr. Conyers very much for yielding.
The good gentleman from Iowa invites us to believe that the laws of
the States are not being overridden because some of these States don't
have laws. That's right, because their State supreme courts have said
that their constitutions forbid the imposition of a cap on what juries
would award people who are injured in medical cases.
So, in Arizona, Arkansas, Kentucky, Pennsylvania, and Wyoming, there
are State constitutional prohibitions explicitly on damage caps. In New
York and Oklahoma, there are explicit caps on damages in wrongful death
cases. And in 11 States, State supreme courts have struck down
statutorily enacted medical malpractice damage caps: Alabama, Florida,
Georgia, Illinois, Missouri, New Hampshire, North Dakota, South Dakota,
Utah, Washington, and Wisconsin.
Now, what is interesting in my State, the 15-year-old girl who was
raped by her dentist could recover up to $785,000 because we had a
whole special session of our general assembly to arrive at that figure.
But there are other States where they said you can't have any limits at
all, and those are the States that are being attacked by this
legislation because now they are reducing them from potentially $20
million or $10 million to $200,000, an outrageous invasion in states'
rights and the rights of juries to decide how people need to be
compensated.
Mr. CONYERS. Mr. Chairman, I yield myself the balance of my time to
close.
Numerous consumer, labor, veterans, and legal groups all oppose H.R.
1215, including the AFL-CIO, the American College of Physicians, the
Consumers Union, Public Citizen, Vietnam Veterans of America, 12 other
national veterans organizations, and the Liberty Caucus.
H.R. 1215 is an extremely flawed bill that will deny access to
justice for victims of medical malpractice and especially those who are
the most vulnerable among us. It would deny full compensation for
injuries suffered by veterans and military families, children, the
elderly, and the poor.
I hope my colleagues will join us in opposing this very unnecessary,
mean-spirited bill.
Mr. Chairman, I yield back the balance of my time.
Mr. KING of Iowa. Mr. Chairman, I inquire as to the amount of time I
have remaining.
The CHAIR. The gentleman from Iowa has 4\1/2\ minutes remaining.
Mr. KING of Iowa. Mr. Chair, I yield myself the balance of my time.
First, I say in response to the gentleman from Maryland's discussion
about the States courts that have prohibited caps. That is one of the
reasons that we need this legislation, is that you have out-of-control
liberal judges that have decided that even their State legislatures
can't pass the laws. They want to come in and preempt the states'
rights of we, the people, of the individual States who elect their
general assemblies to make their decisions.
Often, the judges are set in lifetime appointments where they are not
held accountable, so it would be interesting to look back into each of
these States that the gentleman from Maryland has mentioned and address
this thing from ``we, the people'' because we, the people, are the
power in this country. Our rights come from God, and they are vested in
we, the people.
I thought the gentleman from Pennsylvania's look at H.R. 1215 was a
really deft way to focus on this and speak about the Magna Carta, but
there wasn't anybody back in old England in that time that had any shot
at filing a liability claim, let alone receiving a frivolous claim that
would make one individual vastly wealthy at the expense of a lot of
other folks. So this is something that has accumulated over the last
502 years since the Magna Carta was signed.
So I would say this: healthcare costs are out of control due in large
part to unlimited lawsuits and other problems ObamaCare failed to solve
or else ObamaCare made worse. H.R. 1215 is commonsense litigation
reform legislation that will rein in overly aggressive and healthcare
lawsuits while preserving the ability of plaintiffs to recover
unlimited economic damages.
The bill applies only to claims concerning the provision of
healthcare goods or services for which coverage is provided in whole or
in part by a Federal program, a Federal subsidy, or a Federal tax
benefit giving it a clear Federal nexus.
This isn't criminal legislation. It doesn't address the cases of
rape. We should arrest those people and lock them up in prison and
punish them to the max, but it is not the subject of this legislation.
So wherever the Federal policy directly affects the distribution of
[[Page H5273]]
healthcare, there is a clear Federal interest in reducing the cost of
such Federal policy. This bill's commonsense reforms, which have been
the law in California for over 40 years, are conservatively estimated
by CBO to save at least $50 billion. The previous estimate was $54
billion in Federal healthcare dollars. At the same time, this bill
doesn't in any way limit compensation for 100 percent of plaintiffs'
losses.
As reported in The Washington Post last month, the U.S. healthcare
spending is projected to accelerate over the next day. A study by the
Centers for Medicare and Medicaid Services project that the average
growth in healthcare spending will be even faster between 2016 and
2025. The projections are based on an assumption that the legislative
status quo will prevail. Studies show that, as healthcare costs rise,
wages fall. H.R. 1215 will save billions of dollars in healthcare costs
and will, thereby, increase wages for workers nationwide.
Mr. Chairman, as I look at the picture of how I watched this
defensive medicine grow over the years and over the decades, $650
billion potentially, reported by a Newsweek article, in unnecessary
defensive medicine tests that are done. A doctor that ordered CT scans
in massive numbers in a single day, when I see 97 percent of the MRIs
just to be sure that the diagnosis of an ACL knee injury is protected
in the case of liability insurance, we are not going to see just $50
billion in savings here. We are going to see hundreds of billions of
dollars in savings.
And as an anesthesiologist told me that--he was practicing in Texas--
when Texas passed the law that is roughly a mirror of California law,
that his premium as an anesthesiologist was $26,000 a year; and after
the law passed in Texas, it dropped to $6,500, exactly one-fourth. A 75
percent reduction in that particular case. He is now practicing in
Iowa. Iowa passed mirror legislation as well.
Mr. Chairman, I urge all of my colleagues to join me in supporting
this vital legislation, and I yield back the balance of my time.
The CHAIR. All time for general debate has expired.
Pursuant to the rule, the bill shall be considered for amendment
under the 5-minute rule.
In lieu of the amendment in the nature of a substitute recommended by
the Committee on the Judiciary, printed in the bill, it shall be in
order to consider as an original bill for the purpose of amendment
under the 5-minute rule an amendment in the nature of a substitute
consisting of the text of Rules Committee Print 115-10. That amendment
in the nature of a substitute shall be considered as read.
The text of the amendment in the nature of a substitute is as
follows:
H.R. 1215
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Protecting
Access to Care Act of 2017''.
(b) Table of Contents.--The table of contents of this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Encouraging speedy resolution of claims.
Sec. 3. Compensating patient injury.
Sec. 4. Maximizing patient recovery.
Sec. 5. Authorization of payment of future damages to
claimants in health care lawsuits.
Sec. 6. Product liability for health care providers.
Sec. 7. Definitions.
Sec. 8. Effect on other laws.
Sec. 9. Rules of construction.
Sec. 10. Effective date.
SEC. 2. ENCOURAGING SPEEDY RESOLUTION OF CLAIMS.
(a) Statute of Limitations.--The time for the commencement
of a health care lawsuit shall be 3 years after the date of
injury or 1 year after the claimant discovers, or through the
use of reasonable diligence should have discovered, the
injury, whichever occurs first. In no event shall the time
for commencement of a health care lawsuit exceed 3 years
after the date of injury unless tolled for any of the
following--
(1) upon proof of fraud;
(2) intentional concealment; or
(3) the presence of a foreign body, which has no
therapeutic or diagnostic purpose or effect, in the person of
the injured person.
Actions by a minor shall be commenced within 3 years from the
date of the injury except that actions by a minor under the
full age of 6 years shall be commenced within 3 years of
injury, or 1 year after the injury is discovered, or through
the use of reasonable diligence should have been discovered,
or prior to the minor's 8th birthday, whichever provides a
longer period. Such time limitation shall be tolled for
minors for any period during which a parent or guardian and a
health care provider have committed fraud or collusion in the
failure to bring an action on behalf of the injured minor.
(b) State Flexibility.--No provision of subsection (a)
shall be construed to preempt any state law (whether
effective before, on, or after the date of the enactment of
this Act) that--
(1) specifies a time period of less than 3 years after the
date of injury or less than 1 year after the claimant
discovers, or through the use of reasonable diligence should
have discovered, the injury, for the filing of a health care
lawsuit;
(2) that specifies a different time period for the filing
of lawsuits by a minor;
(3) that triggers the time period based on the date of the
alleged negligence; or
(4) establishes a statute of repose for the filing of
health care lawsuit.
SEC. 3. COMPENSATING PATIENT INJURY.
(a) Unlimited Amount of Damages for Actual Economic Losses
in Health Care Lawsuits.--In any health care lawsuit, nothing
in this Act shall limit a claimant's recovery of the full
amount of the available economic damages, notwithstanding the
limitation in subsection (b).
(b) Additional Noneconomic Damages.--In any health care
lawsuit, the amount of noneconomic damages, if available,
shall not exceed $250,000, regardless of the number of
parties against whom the action is brought or the number of
separate claims or actions brought with respect to the same
injury.
(c) No Discount of Award for Noneconomic Damages.--For
purposes of applying the limitation in subsection (b), future
noneconomic damages shall not be discounted to present value.
The jury shall not be informed about the maximum award for
noneconomic damages. An award for noneconomic damages in
excess of $250,000 shall be reduced either before the entry
of judgment, or by amendment of the judgment after entry of
judgment, and such reduction shall be made before accounting
for any other reduction in damages required by law. If
separate awards are rendered for past and future noneconomic
damages and the combined awards exceed $250,000, the future
noneconomic damages shall be reduced first.
(d) Fair Share Rule.--In any health care lawsuit, each
party shall be liable for that party's several share of any
damages only and not for the share of any other person. Each
party shall be liable only for the amount of damages
allocated to such party in direct proportion to such party's
percentage of responsibility. Whenever a judgment of
liability is rendered as to any party, a separate judgment
shall be rendered against each such party for the amount
allocated to such party. For purposes of this section, the
trier of fact shall determine the proportion of
responsibility of each party for the claimant's harm.
(e) State Flexibility.--No provision of this section shall
be construed to preempt any State law (whether effective
before, on, or after the date of the enactment of this Act)
that specifies a particular monetary amount of economic or
noneconomic damages (or the total amount of damages) that may
be awarded in a health care lawsuit, regardless of whether
such monetary amount is greater or lesser than is provided
for under this section.
SEC. 4. MAXIMIZING PATIENT RECOVERY.
(a) Court Supervision of Share of Damages Actually Paid to
Claimants.--In any health care lawsuit, the court shall
supervise the arrangements for payment of damages to protect
against conflicts of interest that may have the effect of
reducing the amount of damages awarded that are actually paid
to claimants. In particular, in any health care lawsuit in
which the attorney for a party claims a financial stake in
the outcome by virtue of a contingent fee, the court shall
have the power to restrict the payment of a claimant's damage
recovery to such attorney, and to redirect such damages to
the claimant based upon the interests of justice and
principles of equity. In no event shall the total of all
contingent fees for representing all claimants in a health
care lawsuit exceed the following limits:
(1) Forty percent of the first $50,000 recovered by the
claimant(s).
(2) Thirty-three and one-third percent of the next $50,000
recovered by the claimant(s).
(3) Twenty-five percent of the next $500,000 recovered by
the claimant(s).
(4) Fifteen percent of any amount by which the recovery by
the claimant(s) is in excess of $600,000.
(b) Applicability.--The limitations in this section shall
apply whether the recovery is by judgment, settlement,
mediation, arbitration, or any other form of alternative
dispute resolution. In a health care lawsuit involving a
minor or incompetent person, a court retains the authority to
authorize or approve a fee that is less than the maximum
permitted under this section. The requirement for court
supervision in the first two sentences of subsection (a)
applies only in civil actions.
(c) State Flexibility.--No provision of this section shall
be construed to preempt any State law (whether effective
before, on, or after the date of the enactment of this Act)
that specifies a lesser percentage or lesser total value of
damages which may be claimed by an attorney representing a
claimant in a health care lawsuit.
[[Page H5274]]
SEC. 5. AUTHORIZATION OF PAYMENT OF FUTURE DAMAGES TO
CLAIMANTS IN HEALTH CARE LAWSUITS.
(a) In General.--In any health care lawsuit, if an award of
future damages, without reduction to present value, equaling
or exceeding $50,000 is made against a party with sufficient
insurance or other assets to fund a periodic payment of such
a judgment, the court shall, at the request of any party,
enter a judgment ordering that the future damages be paid by
periodic payments, in accordance with the Uniform Periodic
Payment of Judgments Act promulgated by the National
Conference of Commissioners on Uniform State Laws.
(b) Applicability.--This section applies to all actions
which have not been first set for trial or retrial before the
effective date of this Act.
(c) State Flexibility.--No provision of this section shall
be construed to preempt any State law (whether effective
before, on, or after the date of the enactment of this Act)
that specifies periodic payments for future damages at any
amount other than $50,000 or that mandates such payments
absent the request of either party.
SEC. 6. PRODUCT LIABILITY FOR HEALTH CARE PROVIDERS.
A health care provider who prescribes, or who dispenses
pursuant to a prescription, a medical product approved,
licensed, or cleared by the Food and Drug Administration
shall not be named as a party to a product liability lawsuit
involving such product and shall not be liable to a claimant
in a class action lawsuit against the manufacturer,
distributor, or seller of such product.
SEC. 7. DEFINITIONS.
In this Act:
(1) Alternative dispute resolution system; adr.--The term
``alternative dispute resolution system'' or ``ADR'' means a
system that provides for the resolution of health care
lawsuits in a manner other than through a civil action
brought in a State or Federal court.
(2) Claimant.--The term ``claimant'' means any person who
brings a health care lawsuit, including a person who asserts
or claims a right to legal or equitable contribution,
indemnity, or subrogation, arising out of a health care
liability claim or action, and any person on whose behalf
such a claim is asserted or such an action is brought,
whether deceased, incompetent, or a minor.
(3) Collateral source benefits.--The term ``collateral
source benefits'' means any amount paid or reasonably likely
to be paid in the future to or on behalf of the claimant, or
any service, product, or other benefit provided or reasonably
likely to be provided in the future to or on behalf of the
claimant, as a result of the injury or wrongful death,
pursuant to--
(A) any State or Federal health, sickness, income-
disability, accident, or workers' compensation law;
(B) any health, sickness, income-disability, or accident
insurance that provides health benefits or income-disability
coverage;
(C) any contract or agreement of any group, organization,
partnership, or corporation to provide, pay for, or reimburse
the cost of medical, hospital, dental, or income-disability
benefits; and
(D) any other publicly or privately funded program.
(4) Contingent fee.--The term ``contingent fee'' includes
all compensation to any person or persons which is payable
only if a recovery is effected on behalf of one or more
claimants.
(5) Economic damages.--The term ``economic damages'' means
objectively verifiable monetary losses incurred as a result
of the provision or use of (or failure to provide or use)
health care services or medical products, such as past and
future medical expenses, loss of past and future earnings,
cost of obtaining domestic services, loss of employment, and
loss of business or employment opportunities, unless
otherwise defined under applicable state law. In no
circumstances shall damages for health care services or
medical products exceed the amount actually paid or incurred
by or on behalf of the claimant.
(6) Future damages.--The term ``future damages'' means any
damages that are incurred after the date of judgment,
settlement, or other resolution (including mediation, or any
other form of alternative dispute resolution).
(7) Health care lawsuit.--The term ``health care lawsuit''
means any health care liability claim concerning the
provision of goods or services for which coverage was
provided in whole or in part via a Federal program, subsidy
or tax benefit, or any health care liability action
concerning the provision of goods or services for which
coverage was provided in whole or in part via a Federal
program, subsidy or tax benefit, brought in a State or
Federal court or pursuant to an alternative dispute
resolution system, against a health care provider regardless
of the theory of liability on which the claim is based, or
the number of claimants, plaintiffs, defendants, or other
parties, or the number of claims or causes of action, in
which the claimant alleges a health care liability claim.
Such term does not include a claim or action which is based
on criminal liability; which seeks civil fines or penalties
paid to Federal, State, or local government; or which is
grounded in antitrust.
(8) Health care liability action.--The term ``health care
liability action'' means a civil action brought in a State or
Federal court or pursuant to an alternative dispute
resolution system, against a health care provider regardless
of the theory of liability on which the claim is based, or
the number of plaintiffs, defendants, or other parties, or
the number of causes of action, in which the claimant alleges
a health care liability claim.
(9) Health care liability claim.--The term ``health care
liability claim'' means a demand by any person, whether or
not pursuant to ADR, against a health care provider,
including, but not limited to, third-party claims, cross-
claims, counter-claims, or contribution claims, which are
based upon the provision or use of (or the failure to provide
or use) health care services or medical products, regardless
of the theory of liability on which the claim is based, or
the number of plaintiffs, defendants, or other parties, or
the number of causes of action.
(10) Health care provider.--The term ``health care
provider'' means any person or entity required by State or
Federal laws or regulations to be licensed, registered, or
certified to provide health care services, and being either
so licensed, registered, or certified, or exempted from such
requirement by other statute or regulation, as well as any
other individual or entity defined as a health care provider,
health care professional, or health care institution under
state law.
(11) Health care services.--The term ``health care
services'' means the provision of any goods or services by a
health care provider, or by any individual working under the
supervision of a health care provider, that relates to the
diagnosis, prevention, or treatment of any human disease or
impairment, or the assessment or care of the health of human
beings.
(12) Medical product.--The term ``medical product'' means a
drug, device, or biological product intended for humans, and
the terms ``drug'', ``device'', and ``biological product''
have the meanings given such terms in sections 201(g)(1) and
201(h) of the Federal Food, Drug and Cosmetic Act (21 U.S.C.
321(g)(1) and (h)) and section 351(a) of the Public Health
Service Act (42 U.S.C. 262(a)), respectively, including any
component or raw material used therein, but excluding health
care services.
(13) Noneconomic damages.--The term ``noneconomic damages''
means damages for physical and emotional pain, suffering,
inconvenience, physical impairment, mental anguish,
disfigurement, loss of enjoyment of life, loss of society and
companionship, loss of consortium (other than loss of
domestic service), hedonic damages, injury to reputation, and
all other nonpecuniary losses of any kind or nature incurred
as a result of the provision or use of (or failure to provide
or use) health care services or medical products, unless
otherwise defined under applicable state law.
(14) Recovery.--The term ``recovery'' means the net sum
recovered after deducting any disbursements or costs incurred
in connection with prosecution or settlement of the claim,
including all costs paid or advanced by any person. Costs of
health care incurred by the plaintiff and the attorneys'
office overhead costs or charges for legal services are not
deductible disbursements or costs for such purpose.
(15) Representative.--The term ``representative'' means a
legal guardian, attorney, person designated to make decisions
on behalf of a patient under a medical power of attorney, or
any person recognized in law or custom as a patient's agent.
(16) State.--The term ``State'' means each of the several
States, the District of Columbia, the Commonwealth of Puerto
Rico, the Virgin Islands, Guam, American Samoa, the Northern
Mariana Islands, the Trust Territory of the Pacific Islands,
and any other territory or possession of the United States,
or any political subdivision thereof.
SEC. 8. EFFECT ON OTHER LAWS.
(a) Vaccine Injury.--
(1) To the extent that title XXI of the Public Health
Service Act establishes a Federal rule of law applicable to a
civil action brought for a vaccine-related injury or death--
(A) this Act does not affect the application of the rule of
law to such an action; and
(B) any rule of law prescribed by this Act in conflict with
a rule of law of such title XXI shall not apply to such
action.
(2) If there is an aspect of a civil action brought for a
vaccine-related injury or death to which a Federal rule of
law under title XXI of the Public Health Service Act does not
apply, then this Act or otherwise applicable law (as
determined under this Act) will apply to such aspect of such
action.
(b) Other Federal Law.--Except as provided in this section,
nothing in this Act shall be deemed to affect any defense
available to a defendant in a health care lawsuit or action
under any other provision of Federal law.
SEC. 9. RULES OF CONSTRUCTION.
(a) Health Care Lawsuits.--Unless otherwise specified in
this Act, the provisions governing health care lawsuits set
forth in this Act preempt, subject to subsections (b) and
(c), State law to the extent that State law prevents the
application of any provisions of law established by or under
this Act. The provisions governing health care lawsuits set
forth in this Act supersede chapter 171 of title 28, United
States Code, to the extent that such chapter--
(1) provides for a greater amount of damages or contingent
fees, a longer period in which a health care lawsuit may be
commenced, or a reduced applicability or scope
[[Page H5275]]
of periodic payment of future damages, than provided in this
Act; or
(2) prohibits the introduction of evidence regarding
collateral source benefits, or mandates or permits
subrogation or a lien on collateral source benefits.
(b) Protection of States' Rights and Other Laws.--Any issue
that is not governed by any provision of law established by
or under this Act (including State standards of negligence)
shall be governed by otherwise applicable State or Federal
law
(c) State Flexibility.--No provision of this Act shall be
construed to preempt any defense available to a party in a
health care lawsuit under any other provision of State or
Federal law.
SEC. 10. EFFECTIVE DATE.
This Act shall apply to any health care lawsuit brought in
a Federal or State court, or subject to an alternative
dispute resolution system, that is initiated on or after the
date of the enactment of this Act, except that any health
care lawsuit arising from an injury occurring prior to the
date of the enactment of this Act shall be governed by the
applicable statute of limitations provisions in effect at the
time the cause of action accrued.
The CHAIR. No amendment to that amendment in the nature of a
substitute shall be in order except those printed in House Report 115-
179. Each such amendment may be offered only in the order printed in
the report, by a Member designated in the report, shall be considered
as read, shall be debatable for the time specified in the report
equally divided and controlled by the proponent and an opponent, shall
not be subject to amendment, and shall not be subject to a demand for
division of the question.
Amendment No. 1 Offered by Mr. Sessions
The CHAIR. It is now in order to consider amendment No. 1 printed in
House Report 115-179.
Mr. SESSIONS. Mr. Chairman, I have an amendment at the desk.
The CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:
Page 1, strike line 7 and all that follows through page 2,
line 18 and insert the following:
(a) Statute of Limitations.--
(1) In general.--Except as provided in paragraph (2), the
time for the commencement of a health care lawsuit shall be,
whichever occurs first of the following:
(A) 3 years after the date of the occurrence of the breach
or tort;
(B) 3 years after the date the medical or health care
treatment that is the subject of the claim is completed; or
(C) 1 year after the claimant discovers, or through the use
of reasonable diligence should have discovered, the injury.
(2) Tolling.--In no event shall the time for commencement
of a health care lawsuit exceed 3 years after the date of the
occurrence of the breach or tort or 3 years after the date
the medical or health care treatment that is the subject of
the claim is completed (whichever occurs first) unless tolled
for any of the following--
(A) upon proof of fraud;
(B) intentional concealment; or
(C) the presence of a foreign body, which has no
therapeutic or diagnostic purpose or effect, in the person of
the injured person.
(3) Actions by a minor.--Actions by a minor shall be
commenced within 3 years after the date of the occurrence of
the breach or tort or 3 years after the date of the medical
or health care treatment that is the subject of the claim is
completed (whichever occurs first) except that actions by a
minor under the full age of 6 years shall be commenced within
3 years after the date of the occurrence of the breach or
tort, 3 years after the date of the medical or health care
treatment that is the subject of the claim is completed, or 1
year after the injury is discovered, or through the use of
reasonable diligence should have been discovered, or prior to
the minor's 8th birthday, whichever provides a longer period.
Such time limitation shall be tolled for minors for any
period during which a parent or guardian and a health care
provider have committed fraud or collusion in the failure to
bring an action on behalf of the injured minor.
The CHAIR. Pursuant to House Resolution 382, the gentleman from Texas
(Mr. Session) and a Member opposed each will control 5 minutes.
The Chair recognizes the gentleman from Texas.
Mr. SESSIONS. Mr. Chairman, I am pleased to offer this amendment with
Dr. Michael Burgess, also a member of the House Rules Committee, and
also a gentleman from my home State of Texas.
The goal of our amendment is to strengthen the underlying legislation
by clarifying the point at which the statute of limitations begins to
run.
In Texas, the statute of limitations begins to run from the date the
alleged negligence occurs or date of last treatment. This is a certain
date that does not leave room for controversy. I believe aligning the
underlying text with this approach will benefit both physicians and
patients to clarify exactly where harm might occur.
My amendment clarifies that when the date of the breach or tort is
known, the statute runs from that date. When the date of the breach or
tort is not known, the statute runs from the last date of treatment. By
this method, certainty is provided to defendant, plaintiff, and the
court. Easy understanding. For example, if there is a surgical mishap,
the statute would run from that date. On the other hand, if the injury
is from the prescription medication over a long period of time, it
would run from the date of last treatment.
I am pleased that the Texas Medical Association, the Texas Alliance
for Patient Access, the Health Coalition of Liability and Access, as
well as the National Physicians' Council for Healthcare Policy support
this process and this amendment. I hope my colleagues on both sides of
the aisle will support this commonsense, reasonable reform that comes
to us today in an amendment.
I thank Chairman Bob Goodlatte from Virginia and his awesome staff
for their work to make sure this amendment and the underlying
legislation conform with their ideas consistent with the legislation.
Mr. Chairman, I reserve the balance of my time.
Mr. COHEN. Mr. Chairman, I rise in opposition to the amendment.
The CHAIR. The gentleman from Tennessee is recognized for 5 minutes.
Mr. COHEN. Mr. Chairman, the amendment does even more damage than the
bill does because it makes it possible that there will be even less
time for a plaintiff, once they are aware of their injury, to bring
action.
This is something that lessens the statute of limitations. That is
what the bill is trying to do, is to see that less people get their
opportunity to get to court, which is what statute of limitations are
intended to do. That is the purpose.
When somebody has been injured from a medical malpractice case or
negligence from a nursing home, we should encourage people to get
relief and let a jury decide.
These bills--and I suspect these amendments because they are aimed at
the same thing--are opposed by the AFL-CIO; the American Federation of
State, County, and Municipal Employees; the American Bar Association--
not exactly a liberal lion--the Center for Justice and Democracy; and
the National Conference of State Legislatures. Also, because this is a
foray into federalism--unheard of before, making this a Federal issue,
not a State issue--the Consumer Federation of America, the Consumers
Unions, Public Citizen, and Vietnam Veterans of America. There are many
other groups as well.
This amendment does more to see that folks don't get access to a
jury. And the irony of it is that the national Republican effort seems
to be to talk badly about Washington and Congress and drain the swamp
and believe in the individuals back home and folks at home.
Well, the most pure form of justice comes from a jury where you have
a jury of your peers in your own community who are chosen to determine
what happened, to determine the facts, and to determine the damages.
Instead, they are proposing that the Republicans in Congress know
better what to do to put limits on what a jury can award their fellow
citizens.
And they are also putting limitations on the statute of limitations
and lessening that, and on joint and several liability, which go toward
helping people who have gotten judgments be able to collect on
judgments, which is so important. A judgment is no good unless you can
collect on it. It is just counter to what the Republican Party
philosophy generally is and has been, that I have kind of perceived
recently, about being against Washington and laws coming on down high
from Washington, D.C.
{time} 1530
Much of what we heard at our discussion from a gentleman from West
Virginia was about a West Virginia law. That is what you are supposed
to have is a West Virginia law. Then somebody else talked about a Texas
law, and they are holding up a California law.
Each State is supposed to make its own laws. We have got 50 States.
They
[[Page H5276]]
talk a lot about the 50 States and the electoral college, and the
States have an important function in our system of government. They are
supposed to be areas where they have provinces and act. Juries, jury
trials, and trial courts, that is all State law, and that should be
determined by West Virginia, Texas, California, and Florida, not up
here.
This bill, when it went through committee, passed by one vote because
a couple of folks--I think it was Judge Poe and Judge Gohmert; I am
pretty sure it was the two of them--two judges from the State of Texas
felt it went too far in encroaching on the States' province dealing
with tort law. This amendment just goes the same direction.
This is just unfortunate that what we are trying to do is help,
really, insurance companies; it is not so much doctors. Doctors might
benefit some, but it is the insurance companies that would benefit the
most, and that is who this is about.
So we oppose the amendment and we oppose the bill. We support the
American people and the right of the people and the juries to dispense
justice that the facts dictate and that justice demands.
Mr. Chairman, I reserve the balance of my time.
Mr. SESSIONS. Mr. Chairman, perhaps the debate that the gentleman
from Iowa (Mr. King) had was completely clear, which I would disagree
with that statement. The gentleman from Iowa stated very clearly that
there are surgeries, there are procedures, and there are processes that
cost the Federal Government hundreds of millions, and the gentleman
even went into the billions of dollars, which are parts of practices of
medicine that doctors do as a defensive part of medicine to avoid
exactly what we are talking about: getting sued. It is costing the
Federal Government an enormous amount of money.
The gentleman did refer to two Members of Congress from Texas. We
will see how they vote.
But the clarifying amendments that we are offering now, amendment No.
1 and amendment No. 2, come directly from negotiations with and
understanding with the Texas Medical Association and the National
Physicians' Policy Council to ensure that, in fact, the compliance is
made that people not only in Texas, but also in other States, would
have that would offer a physician the ability for them to use their
knowledge, their training, and their expertise as opposed to practicing
defensive medicine that harms every single taxpayer. That is why we are
offering this today.
I am delighted. I believe what we have done is right.
Mr. Chairman, I yield such time as he may consume to the gentleman
from Iowa (Mr. King).
Mr. KING of Iowa. Mr. Chairman, I thank the gentleman from Texas for
yielding.
I want to express, Mr. Chairman, how much I appreciate the work that
has been done by so many people and their part in this bill.
I rise in support of this improving amendment--it comes out of the
minds of Texas, I might add--which would clarify the timing of the
statute of limitations in the provision base of the bill.
Mr. Chairman, I urge the adoption of the Sessions amendment.
Mr. SESSIONS. Mr. Chairman, I reserve the balance of my time.
Mr. COHEN. Mr. Chairman, this is an amendment--a bad amendment--that
makes a bad bill worse. All those folks from Texas ought to be going to
Austin. Where this belongs is in Austin, not in Washington. These are
State issues.
We had an amendment that said that these defensive measures that you
say that they are taking that waste all this money and time, we had an
amendment that said these caps wouldn't apply if you cut off the wrong
arm, and you all wouldn't take it. So I don't know how many defensive
measures they have got.
This is the right arm; this is the left arm. When you go in to do
surgery and you have to amputate an arm, take off the right arm or the
left arm, but not the wrong arm. If you take off the wrong arm--damages
big time. You all didn't accept that amendment.
This is shutting the courthouse door, closing down juries, and not
having faith in the American people to be able to ascertain facts and
damages as they have throughout time immemorial. It is a power grab
from Washington. It is the swamp draining over to flood the State
houses of all 50 of our States.
Mr. Chairman, I yield back the balance of my time.
Mr. SESSIONS. Mr. Chairman, I believe the gentleman, Mr. King, has
argued the point very successfully, and that is we believe it is in the
best interests of not only the taxpayers, but physicians, physicians
who have used their training, their expertise, and their knowledge to
perform the necessary missions that are necessary. When those
physicians do make mistakes--and mistakes will happen--then we believe
that the rights of those that are reported in California and Texas
would be consistent with those that would be great for the country. We
are willing to share, and we appreciate the opportunity to present
this.
Mr. Chairman, I would ask my colleagues to support this amendment
that I have presented today, and I yield back the balance of my time.
The CHAIR. The question is on the amendment offered by the gentleman
from Texas (Mr. Sessions).
The amendment was agreed to.
Amendment No. 2 Offered by Mr. Sessions
The CHAIR. It is now in order to consider amendment No. 2 printed in
House Report 115-179.
Mr. SESSIONS. Mr. Chairman, I have an amendment at the desk as the
designee of the gentleman from Texas (Mr. Burgess).
The CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:
Page 12, line 13, insert after ``goods or services'' the
following: ``(including safety, professional, or
administrative services directly related to health care)''.
The CHAIR. Pursuant to House Resolution 382, the gentleman from Texas
(Mr. Sessions) and a Member opposed each will control 5 minutes.
The Chair recognizes the gentleman from Texas.
Mr. SESSIONS. Mr. Chairman, I offer my thanks not only to Chairman
Bob Goodlatte, but also the distinguished gentleman from Iowa (Mr.
King) for his work on behalf of all Members on the floor today, for his
work not only for the Judiciary Committee, but people of faith and
confidence that this country can address the issues and needs.
Mr. Chairman, I offer this amendment with Dr. Michael Burgess, who is
also from my home State of Texas as well as a member of the Rules
Committee.
The goal of our amendment is to clarify that healthcare liability
claims covered by the legislation include safety, professional, and
administrative services directly related to healthcare. In other words,
we are bringing in the entire scope, not just necessarily the medical
procedure.
I was glad to see that H.R. 1215 adopts many of the reforms that
States across this country have thoroughly tested in their efforts to
improve medical liability law, including my home State of Texas.
Not all claims asserted against healthcare providers arise from the
direct provision of medical care. My amendment addresses the full
spectrum of healthcare claims by following the model that Texas has
successfully implemented.
Common examples of administrative claims related to healthcare are
cases for negligence involving credentialing fraud against hospitals
and those serving on their professional committees. In these cases, the
plaintiff typically is not a patient of the physician serving on the
committee; however, there is significant exposure to liability for the
physician.
Safety claims are another necessary component in the scope of this
bill. In these cases, a patient's injury does not arise out of the
rendition of healthcare, but pertains to the safety of the patient.
The Texas Medical Association, the Texas Alliance for Patient Access,
and the National Physicians' Policy Council are among those
organizations who not only support this narrowly tailored amendment,
but also their support of the entire bill and the inclusions of this
amendment.
Mr. Chairman, I reserve the balance of my time.
Mr. COHEN. Mr. Chairman, I claim the time in opposition.
[[Page H5277]]
The CHAIR. The gentleman from Tennessee is recognized for 5 minutes.
Mr. COHEN. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, this is called the Protecting Access to Care Act, but
that is really a misnomer because the purpose of these amendments in
the bill takes as a given that there are going to be allegations that
doctors, medical device companies--not exactly limited financial
resources or in potential for harm--and nursing homes are going to be
alleged to have committed torts against individuals and that when that
happens, if this becomes law, there will be less opportunity for
individuals to get their day in court.
Because most people in the United States are not wealthy, most of the
people that get injured not being wealthy are going to bear the brunt
of this when they don't get to court within the statute of limitations
or they don't collect because of the joint and several liability
changes in the law or they get less with noneconomic damages because of
the $250,000 cap.
Who is going to benefit from this? Who is going to benefit? It is
going to be the person who a jury has found to have been negligent and
violated their duty of care: a nursing home, a medical device company,
or a physician. They are going to have less damages, less judgments
against them, and less costs. Insurance companies can then make more
money, and doctors will have lesser premiums.
Who loses? People who have been injured by medical device defective
merchandise, nursing home negligence, or medical malpractice.
We are not talking about limiting damages and the ability to recover
by having a lesser joint and several liability law. We are not talking
about people who have not gotten a judgment. We are talking about
people who have gotten a judgment for negligence.
Just like the Republican healthcare bill, this gives billions of
dollars to the richest people in America with tax cuts at the expense
of poor people who get Medicaid, people with disabilities, pregnant
women, poor people, and seniors in nursing homes. They suffer.
This is a microcosm of the healthcare proposals that the Senate can't
get 50 votes for--and they didn't even try for 60, which they normally
do, because they knew it was not going to be that sufficient, but now
they can't even get 50 under reconciliation--and it is a microcosm of
hurting the poor and enriching the rich.
These are cases where there will be judgments--juries finding
negligence, harm, and damages--if you get to the courthouse on time,
and then you won't be able to collect as much.
So who wins? The rich, the medical device companies, the nursing
homes, and the physicians. Who loses? Those who have suffered, those
whom juries have found to be victims, and victims who should be able to
collect but we are limiting how much they can collect and we are making
it more difficult for them to collect.
That is not what this Congress should be doing is enriching the
wealthy and hurting those who have been harmed by negligence. If it is
going to happen, it ought to happen in the States. So it is an attack
on the 10th Amendment.
Mr. Duncan from Tennessee came here and gave beautiful testimony
about a consistent life protecting the 10th Amendment, and that is what
Mr. Gohmert and Judge Poe also did about what is left to the States.
That is why this amendment and the bill are both bad.
Mr. Chairman, I reserve the balance of my time.
Mr. SESSIONS. Mr. Chairman, I yield myself such time as I may
consume.
Mr. Chairman, the gentleman I respect very much, not only the
perspective that the gentleman holds, but perhaps some of his argument
could be true.
Mr. Chairman, what we are trying to do is to balance out the
opportunity for the American people to have access to healthcare where,
many items, they are denied.
I was reminded by the gentleman, the young chairman of the Veterans'
Affairs Committee, Dr. Phil Roe, who served his great State of
Tennessee and the American people as an obstetrician and gynecologist,
I was reminded of the facts of the case, as it were, where, when Texas
passed this, counties all along our Texas borders received, instead of
midwives and others who might perform these important services to
deliver babies, all of a sudden medical professionals, doctors, came
into play who had been shut out because of the fear of malpractice
lawsuits against them. Texas added, in the first year, some 4,500
doctors who came to Texas knowing that it was a level playing field.
In this case, Mr. Chairman, we are arguing that the United States of
America and the citizens would not have to pay outrageous amounts of
money for defensive medicine, whereby physicians, in order to protect
themselves and to protect themselves in a difficult circumstance, might
order, as a defensive mechanism, excessive amounts of either X-rays or
other procedures that really cost the government money instead of
providing better healthcare.
{time} 1545
This has been an advantage in the State of California, and in the
State of Texas, where physicians use not only their training and their
professional conduct, but they use what is in the best interest of the
patient. That is why we are here today.
Mr. Chair, I yield such time as he may consume to the gentleman from
Iowa (Mr. King).
Mr. KING of Iowa. Mr. Chair, I thank the gentleman from Texas for his
leadership on the Rules Committee and in many other ways; and I also
thank Dr. Burgess, another gentleman from Texas on the Rules Committee
whose amendment is being offered by Mr. Sessions.
As I listen to this dialogue, Mr. Chairman, I am just thinking that
States do have rights. They have the right to control any of the
healthcare services that are funded by individuals or States. This only
affects that because it has Federal dollars in it. We drive at a 55-
mile-an-hour speed limit because the Federal Government sets that.
So I rise in support of this amendment, but the States are not
funding Medicare, Medicaid, or ObamaCare.
Mr. COHEN. Mr. Chairman, how much time do I have remaining?
The CHAIR. The gentleman from Tennessee has 1 minute remaining.
Mr. COHEN. Mr. Chair, I yield 1 minute to the gentleman from Iowa
(Mr. King), because I think it helps my case.
Mr. KING of Iowa. Mr. Chair, I am happy to accept the time from the
gentleman from Tennessee and make the point that hasn't been made very
well here today that--apparently, not well enough or the gentleman
wouldn't have yielded the time to me, I don't believe--where there are
Federal dollars involved, there have been Federal regulations that have
matched along with that.
We have written all kinds of legislation in this Congress, a lot of
which I disagreed with. But there was a Federal nexus, and it hasn't
been litigated successfully time after time after time.
We saw ObamaCare itself was litigated over and over again and the
Supreme Court came down with rulings that let that legislation stand.
That is one of the reasons why we have the angst that we have today.
But the case that this usurps States' rights is thin. It is not
without some consequence, but it is very thin. We have gone way over to
the other side, and we have written everything that we can possibly
write into this bill that respects the rights of States. There is
always a Federal nexus--we can count on that--and it is so small in
comparison to so many other Federal things. Some of the things in our
Federal Government are overreach. This is not. This is a minimal, de
minimis reach in order to regulate over-the-top trial lawyers, who are
the ones who are the only losers today, Mr. Chairman.
Mr. SESSIONS. Mr. Chair, I yield back the balance of my time.
Mr. COHEN. Mr. Chair, I yield back the balance of my time.
The CHAIR. The question is on the amendment offered by the gentleman
from Texas (Mr. Sessions).
The amendment was agreed to.
Amendment No. 3 Offered by Mr. Roe of Tennessee
The CHAIR. It is now in order to consider amendment No. 3 printed in
House Report 115-179.
[[Page H5278]]
Mr. ROE of Tennessee. Mr. Chairman, I have an amendment at the desk.
The CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:
Add, at the end of the bill, the following (and amend the
table of contents accordingly):
SEC. 11. LIMITATION ON EXPERT WITNESS TESTIMONY.
(a) In General.--No person in a health care profession
requiring licensure under the laws of a State shall be
competent to testify in any court of law to establish the
following facts--
(1) the recognized standard of acceptable professional
practice and the specialty thereof, if any, that the
defendant practices, which shall be the type of acceptable
professional practice recognized in the defendant's community
or in a community similar to the defendant's community that
was in place at the time the alleged injury or wrongful
action occurred,
(2) that the defendant acted with less than or failed to
act with ordinary and reasonable care in accordance with the
recognized standard, and
(3) that as a proximate result of the defendant's negligent
act or omission, the claimant suffered injuries which would
not otherwise have occurred,
unless the person was licensed to practice, in the State or a
contiguous bordering State, a profession or specialty which
would make the person's expert testimony relevant to the
issues in the case and had practiced this profession or
specialty in one of these States during the year preceding
the date that the alleged injury or wrongful act occurred.
(b) Applicability.--The requirements set forth in
subsection (a) shall also apply to expert witnesses
testifying for the defendant as rebuttal witnesses.
(c) Waiver Authority.--The court may waive the requirements
in this subsection if it determines that the appropriate
witnesses otherwise would not be available.
The CHAIR. Pursuant to House Resolution 382, the gentleman from
Tennessee (Mr. Roe) and a Member opposed each will control 5 minutes.
The Chair recognizes the gentleman from Tennessee.
Mr. ROE of Tennessee. Mr. Chairman, I yield myself such time as I may
consume.
Mr. Chairman, medical malpractice lawsuits in this country have
gotten out of hand, which is hurting both providers and patients.
Something must be done.
I have spent 31 years practicing medicine in Tennessee before coming
to Congress. In that time, I saw my medical malpractice insurance
premiums increase from $4,000 a year to over $50,000 a year, by the
time I left practice.
Why were the premiums so expensive? My practice group took everyone:
private insurance, Medicare, Medicaid, TRICARE, and the uninsured. Some
practices limit their patient populations, but when you are in rural
Appalachia, you take all comers.
The reality is, when you are taking care of patients with elevated
risk, you get more frequent negative outcomes, increasing your risk for
lawsuits, and this creates an issue for patient access to care.
Finally, right when I was leaving practice in 2008, Governor Haslam
signed into law some of the best reforms we have in Tennessee, in the
Tennessee Medical Malpractice Act, which created a 60-day notice
statute and a certificate of good faith certifying a case has merit
before it can be filed.
In 2011, Governor Haslam then signed the Tennessee Civil Justice Act
into law, which contained a restriction on who could testify as an
expert witness in medical malpractice litigation.
Too often, physicians practicing medicine are pitted in litigation
against a professional witness who has gone to medical school but
specialized in a different field and wasn't even licensed to practice
in their State or a contiguous State. Mr. Chairman, that is absolutely
wrong.
The fact is, these changes work. In Tennessee, we saw medical
malpractice premiums reduced from 2009 to 2014 by between 25 and 40
percent, depending on the specialty. OBs saw average premiums reduced
from over $52,000 to just over $33,000; neurosurgeons saw average
premiums reduced from $49,000 to $35,000; cardiovascular surgeons saw
their premiums go down from $44,000 to $31,000. There were other
changes that were put into place that helped, including caps, but the
fact was, this change had a major impact.
My amendment follows Tennessee's law and strengthens the changes
contained in the underlying text of the bill, H.R. 1215, by adding
further restrictions to those individuals who would qualify as an
expert witness for medical malpractice litigation. My amendment limits
who can be called as an expert witness, not only by the individual's
professional accreditation, but also by his or her geographic location.
The fact is, as Tennessee's law proved, we needed medical
professionals from the area where the incident in question occurred to
testify as an expert, not a foreign jurisdiction hundreds of thousands
of miles away. If that proves to be impossible, the court can waive
this requirement if a witness that fits these criteria is otherwise
unavailable.
Mr. Chairman, no one knows the people or healthcare providers in an
area better than the people and healthcare providers in that area.
Whether testifying for the plaintiff or defendant, it is important that
those individuals called as experts really know the people in the area
and aren't simply flown in from a faraway place just to get a paycheck.
We all want improved quality and lower costs of care. Reforming the
litigation process is a step in the right direction.
Mr. Chairman, I encourage Members to support my amendment, and I
reserve the balance of my time.
Mr. COHEN. Mr. Chairman, I claim the time in opposition.
The CHAIR. The gentleman from Tennessee is recognized for 5 minutes.
Mr. COHEN. Mr. Chair, this is the Tennessee law. I remember it. It is
probably not such a wonderful law, even in Tennessee, even though some
of us didn't care because Tennessee is an unusual State.
You see it when you go to Rock City. From Rock City, you see seven,
eight, or nine States. That is pretty good, even without the help of
the Southern College of Optometry.
If you are in Memphis, the bill would say that you could have an
expert from Arlington, Virginia, come to Memphis. That is a long way,
yet we are so much closer to Springfield, Illinois, or even to Dallas,
Texas, or we are much closer to Baton Rouge, where they have got a lot
of great doctors. Those doctors from Baton Rouge could come to Memphis.
They would be closer to Memphis than somebody from Arlington, Virginia.
The fact is, the State should decide this. Tennessee made this
contiguous State or your own State law. For Alaska, that means you have
got Alaska. For Hawaii, it means you have got Hawaii. The States should
decide who is an expert and who isn't.
It also says you have got to be in practice for the previous year. If
somebody is not in practice and they are a professor at a medical
school and maybe the outstanding expert on cardiovascular diseases, and
they happen to be someplace like Harvard, they wouldn't be able to go
to a State that is not contiguous to Massachusetts. If they weren't
practicing, they wouldn't be able to be an expert at all.
These arbitrary time limits, arbitrary requirements, and arbitrary
demographic limitations are not aimed at justice or saving costs. They
are aimed at reducing the number of experts who might be available.
In a State, it is more difficult to get an expert to come testify
because you may get ostracized by your fellow professionals. It might
be easier for a plaintiff to find an expert from a State that is a
little bit of a distance.
I am not that familiar with Maine. Does it touch maybe Vermont and
New Hampshire? It kind of limits itself, too. In Tennessee, you would
have 9 or 10 States; in Alaska, none; Hawaii, none; Maine, two.
Minnesota has got to be limited because we wouldn't go to Canada
because that is not part of our system.
Of course, this isn't really part of our system either because our
system is a Federal system, where we give States the right to make
these decisions and not make them up in Washington with a one-size-
fits-all way to stop people who have been damaged by medical
malpractice, medical device defects, or nursing home negligence from
getting whole compensation.
We put a limit from Washington on the old person who is being taken
advantage of by some individual in a nursing home or some individual
who has been given a defective valve in their heart because of a
medical device problem.
[[Page H5279]]
We in Washington, under this bill, think we know more than what a
jury should know about the effects and the damages when that person
testifies in that courtroom in front of that jury and before that judge
and have their damages proven. You can see that individual and know the
harm they have been caused, but their damages are going to be limited
because of something that goes on here in Washington, D.C.
That is something the other side argues against constantly. They say
things should be decided back home in the States--things like voting
rights and trying to limit the opportunity for people in the Justice
Department to see to it that people get a chance to vote. They say that
States' rights are primary when it suits their purposes.
In Tennessee, the doctors own the medical malpractice insurance
company. I think it has the word ``Volunteer'' in it. It is the doctors
who own it. So they will be direct beneficiaries.
Mr. Chairman, I reserve the balance of my time.
Mr. ROE of Tennessee. Mr. Chairman, where the subsidies were going in
our State were to the lawyers, since they got over 60 percent of any
medical malpractice settlement. The poor patients got less than forty
cents on the dollar.
Mr. Chairman, I yield 1 minute to the gentleman from Iowa (Mr. King).
Mr. KING of Iowa. Mr. Chairman, I thank Dr. Roe, the gentleman from
Tennessee, for bringing this amendment.
Looking at the language here, it is interesting that the concern was
that the witnesses may not be available within a large State. I notice,
as I read the language, that unless the person was licensed for
practice in the State or a contiguous border State--that is pretty
good. If you are Hawaii, maybe not so good. But Dr. Roe, typical to his
style, anticipated these things by putting the waiver authority in the
last provision in the amendment, which says: ``The court may waive the
requirements in this subsection if it determines that the appropriate
witnesses otherwise would not be available.''
So this is a sound, well thought-out directive that ensures that we
have a high level of professionalism.
When the gentleman earlier talked about a jury of your peers, what
about having professionals who are highly credentialed that do
understand the locality and the normal practices within the region?
So not only do I support this amendment, but I encourage its
adoption. It requires expert witnesses to have knowledge of the
standard of care in their local communities. It is a commonsense
amendment, and I urge its adoption.
Mr. COHEN. Mr. Chair, I yield myself such time as I may consume.
Mr. Chair, I was going to try to find that language.
Years ago, a trial lawyer named J.D. Lee told me when I was just a
28-year-old constitutional convention delegate: Don't go down rabbit
trails. The gentleman from Iowa is throwing rabbit trails out there,
and I am not going to go down one.
The fact is, this is a State issue that should be determined by the
States and should be determined by judges and jurors in their
jurisdiction who see the defendant and see the plaintiff with their own
eyes and determine the facts as the facts dictate and justice demands,
is what we hear and what we live by in jury cases. That is what we
should live by in Washington in determining what damages are, and not
making the decisions up here in Washington, D.C.
This is a bad amendment. It is a bad bill. It is contrary to the
mantra that you normally hear from the other side.
Mr. Chairman, I yield back the balance of my time.
Mr. ROE of Tennessee. Mr. Chairman, I wish the damages did go to
patients in Tennessee. They don't. The majority goes to lawyers.
Mr. Chairman, I yield the balance of my time to the gentleman from
Kansas (Mr. Marshall), my good friend and a fellow OB/GYN.
{time} 1600
Mr. MARSHALL. Mr. Chairman, I rise in support of this amendment
offered by gentleman from Tennessee. Like Dr. Roe, I, too, have been an
OB-GYN.
The standard of care is defined by local physicians. Let me say that
again. The standard of care should be defined by local physicians, and
how medicine is practiced may vary from location to location. No matter
what, all physicians, especially in rural settings, don't have access
to all the luxuries in tertiary centers. Demanding that experts
representing either side of a dispute practice medicine in the State of
jurisdiction is just common sense.
Mr. ROE of Tennessee. Mr. Chair, I yield back the balance of my time.
Mr. BUCSHON. Mr. Chair, as a physician I have seen firsthand how
frivolous lawsuits against experienced physicians have hindered the
health care system and increased costs to all patients.
It is imperative we address this through common sense legislation.
This amendment would require expert witnesses in medical malpractice
negligence cases to have practiced in the same specialty and
geographical area as the physician defendant.
This limitation ensures that the expert witness has the qualified
experience with and knowledge of the standard of care recognized in
their local communities. I was a heart surgeon. I was not qualified to
testify in a dermatology case.
I ask my colleagues to join me in voting yes on Dr. Roe's amendment
and the Protecting Access to Care Act.
The CHAIR. The question is on the amendment offered by the gentleman
from Tennessee (Mr. Roe).
The amendment was agreed to.
Amendment No. 4 Offered by Mr. Hudson
The CHAIR. It is now in order to consider amendment No. 4 printed in
House Report 115-179.
Mr. HUDSON. Mr. Chair, I have an amendment that the desk.
The CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:
Add, at the end of the bill, the following:
SEC. 11. COMMUNICATIONS FOLLOWING UNANTICIPATED OUTCOME.
(a) Provider Communications.--In any health care liability
action, any and all statements, affirmations, gestures, or
conduct expressing apology, fault, sympathy, commiseration,
condolence, compassion, or a general sense of benevolence
which are made by a health care provider or an employee of a
health care provider to the patient, a relative of the
patient, or a representative of the patient and which relate
to the discomfort, pain, suffering, injury, or death of the
patient as the result of the unanticipated outcome of medical
care shall be inadmissible for any purpose as evidence of an
admission of liability or as evidence of an admission against
interest.
(b) State Flexibility.--No provision of this section shall
be construed to preempt any State law (whether effective
before, on, or after the date of the enactment of this Act)
that makes additional communications inadmissible as evidence
of an admission of liability or as evidence of an admission
against interest.
SEC. 12. EXPERT WITNESS QUALIFICATIONS.
(a) In General.--In any health care lawsuit, an individual
shall not give expert testimony on the appropriate standard
of practice or care involved unless the individual is
licensed as a health professional in one or more States and
the individual meets the following criteria:
(1) If the party against whom or on whose behalf the
testimony is to be offered is or claims to be a specialist,
the expert witness shall specialize at the time of the
occurrence that is the basis for the lawsuit in the same
specialty or claimed specialty as the party against whom or
on whose behalf the testimony is to be offered. If the party
against whom or on whose behalf the testimony is to be
offered is or claims to be a specialist who is board
certified, the expert witness shall be a specialist who is
board certified in that specialty or claimed specialty.
(2) During the 1-year period immediately preceding the
occurrence of the action that gave rise to the lawsuit, the
expert witness shall have devoted a majority of the
individual's professional time to one or more of the
following:
(A) The active clinical practice of the same health
profession as the defendant and, if the defendant is or
claims to be a specialist, in the same specialty or claimed
specialty.
(B) The instruction of students in an accredited health
professional school or accredited residency or clinical
research program in the same health profession as the
defendant and, if the defendant is or claims to be a
specialist, in an accredited health professional school or
accredited residency or clinical research program in the same
specialty or claimed specialty.
(3) If the defendant is a general practitioner, the expert
witness shall have devoted a majority of the witness's
professional time in the 1-year period preceding the
occurrence of the action giving rise to the lawsuit to one or
more of the following:
(A) Active clinical practice as a general practitioner.
[[Page H5280]]
(B) Instruction of students in an accredited health
professional school or accredited residency or clinical
research program in the same health profession as the
defendant.
(b) Lawsuits Against Entities.--If the defendant in a
health care lawsuit is an entity that employs a person
against whom or on whose behalf the testimony is offered, the
provisions of subsection (a) apply as if the person were the
party or defendant against whom or on whose behalf the
testimony is offered.
(c) Power of Court.--Nothing in this subsection shall limit
the power of the trial court in a health care lawsuit to
disqualify an expert witness on grounds other than the
qualifications set forth under this subsection.
(d) Limitation.--An expert witness in a health care lawsuit
shall not be permitted to testify if the fee of the witness
is in any way contingent on the outcome of the lawsuit.
(e) State Flexibility.--No provision of this section shall
be construed to preempt any State law (whether effective
before, on, or after the date of the enactment of this Act)
that places additional qualification requirements upon any
individual testifying as an expert witness.
SEC. 13. AFFIDAVIT OF MERIT.
(a) Required Filing.--Subject to subsection (b), the
plaintiff in a health care lawsuit alleging negligence or, if
the plaintiff is represented by an attorney, the plaintiff's
attorney shall file simultaneously with the health care
lawsuit an affidavit of merit signed by a health professional
who meets the requirements for an expert witness under
section 14 of this Act. The affidavit of merit shall certify
that the health professional has reviewed the notice and all
medical records supplied to him or her by the plaintiff's
attorney concerning the allegations contained in the notice
and shall contain a statement of each of the following:
(1) The applicable standard of practice or care.
(2) The health professional's opinion that the applicable
standard of practice or care was breached by the health
professional or health facility receiving the notice.
(3) The actions that should have been taken or omitted by
the health professional or health facility in order to have
complied with the applicable standard of practice or care.
(4) The manner in which the breach of the standard of
practice or care was the proximate cause of the injury
alleged in the notice.
(5) A listing of the medical records reviewed.
(b) Filing Extension.--Upon motion of a party for good
cause shown, the court in which the complaint is filed may
grant the plaintiff or, if the plaintiff is represented by an
attorney, the plaintiff's attorney an additional 28 days in
which to file the affidavit required under subsection (a).
(c) State Flexibility.--No provision of this section shall
be construed to preempt any State law (whether effective
before, on, or after the date of the enactment of this Act)
that establishes additional requirements for the filing of an
affidavit of merit or similar pre-litigation documentation.
SEC. 14. NOTICE OF INTENT TO COMMENCE LAWSUIT.
(a) Advance Notice.--A person shall not commence a health
care lawsuit against a health care provider unless the person
has given the health care provider 90 days written notice
before the action is commenced.
(b) Exceptions.--A health care lawsuit against a health
care provider filed within 6 months of the statute of
limitations expiring as to any claimant, or within 1 year of
the statute of repose expiring as to any claimant, shall be
exempt from compliance with this section.
(c) State Flexibility.--No provision of this section shall
be construed to preempt any State law (whether effective
before, on, or after the date of the enactment of this Act)
that establishes a different time period for the filing of
written notice.
The CHAIR. Pursuant to House Resolution 382, the gentleman from North
Carolina (Mr. Hudson) and a Member opposed each will control 5 minutes.
The Chair recognizes the gentleman from North Carolina.
Mr. HUDSON. Mr. Chairman, access to a fair and just court system is a
vital part of the makeup of the United States. It is important that
courts are used to seek justice, not for the financial benefit of
lawyers looking to take advantage of patients. Basic protections these
amendments provide from frivolous lawsuits will provide peace of mind
for the vast majority of physicians who work so hard to protect and
heal their patients.
Patients in States that have enacted comprehensive medical liability
reform have seen their healthcare costs decrease and their access to
quality medical care increase. Enacting these reforms at the Federal
level will benefit patients nationwide.
All provisions within this amendment defer to State laws and directly
address the issues covered.
The first provision is called the Sorry Provision. This provision
would allow a physician to apologize to a patient for an unintended
outcome without having that apology count against them in a court of
law. Thirty-two States plus the District of Columbia have an apology
provision in place.
The second issue in this amendment is Notice of Intent. This
provision would require a plaintiff to provide a notice of intent to
the physician 90 days before a lawsuit is filed. Cases are often
settled before reaching a verdict, and this provision would encourage
settlement before court proceedings begin.
The third provision is Affidavits of Merit. This provision would
require a plaintiff to have a physician in the same specialty as the
defendant physician to sign an affidavit certifying the merits of the
case before the lawsuit could be brought to court. Twenty-seven States
have some form of affidavits of merit, though the standards vary from
State to State.
The final provision in the amendment is Expert Witness
Qualifications. This provision would require that any expert witness
called to testify during a trial would need to meet the same licensing
requirements as the defendant physician. Forty-eight States plus the
District of Columbia have some form of expert witness qualification,
though the standards vary from State to State.
So you see, these are very commonsense provisions. They are
provisions that many States already have, and they will lead to lower
costs and better care for patients, which ought to be our goal in the
end.
Mr. Chairman, I reserve the balance of my time.
Mr. COHEN. Mr. Chairman, I rise in opposition to my friend's
amendment.
The CHAIR. The gentleman from Tennessee is recognized for 5 minutes.
Mr. COHEN. Mr. Chairman, this amendment prohibits the introduction of
apologies as evidence of liability, imposes on States the
qualifications for expert witnesses in a healthcare lawsuit, requires
plaintiffs to obtain a certificate of merit from a healthcare
professional in order to pursue a healthcare lawsuit, and has a 90-day
pre-suit notification requirement.
This amendment is very, very difficult in that it says that, if you
apologize, a doctor apologizes, the hope is that the doctor can
apologize and the patient may think: Oh, he apologized. That is nice. I
won't sue him. But then if you decide to sue him or her, you can't put
that apology in evidence against him. So it is kind of maybe crocodile
tears, a crocodile apology.
But it also requires a plaintiff to get a certificate of merit from a
healthcare professional to pursue a healthcare lawsuit--not from a
lawyer, but from a healthcare professional. You have got to go to the
fraternity to sue a fellow fraternity brother. That is a strange one.
This amendment would add numerous problematic provisions that
significantly expand this bill beyond what was even discussed in the
Judiciary Committee and in Rules, and it violates State sovereignty,
all without any proper legislative vetting before coming to the floor.
This is the first I have seen it or I think anybody has seen this
proposal--not necessarily regular order.
Its apology provision is overly broad and undermines the legal right
of patients. This provision states any apology by a healthcare provider
given to a patient or their family is inadmissible for any purpose as
evidence of liability or an admission against interest. If it is a true
apology, it should be admitted, but it won't be.
The purpose of so-called apology laws that occur sometimes at the
State level, which is where they should be, is to encourage a doctor to
apologize to the patient for any harm while preserving that patient's
ability to offer evidence of wrongdoing. Yet this amendment upends this
balance by prohibiting the admission of all expressions of empathy or
apology for any purpose of evidence or admission of liability.
This overbroad language undermines the patient's ability to offer
evidence that he or she was harmed by wrongdoing. By making
inadmissible admissions of fault by the provider, the amendment goes
further than many State laws that do not prohibit admissions of fault
and would still allow apology evidence to be used for purposes other
than proving liability, such as impeaching a witness.
[[Page H5281]]
Second, the amendment imposes highly restrictive expert witness
qualifications on State courts, which we just discussed with Mr. Roe's
amendment. This amendment requires the expert witness to be an exact
carbon copy of the defendant. The expert must teach or practice in the
same specialty and must have been doing so at the time of the
occurrence that forms the basis of the lawsuit and for 1 year preceding
the occurrence.
Under this provision, someone with 30 years of professional
experience may not qualify; whereas, a person with 1 year of experience
could qualify as an expert. Indeed, this rule excludes retired
professionals, many academics, and researchers from testifying as
experts. It should be up to a judge in the courtroom or to a State that
has province over this jurisdiction, not the Federal Government.
Third, this amendment imposes further burdens on injured plaintiffs
beyond the already onerous requirements of the underlying bill before
they can even file a lawsuit. The amendment requires an injured patient
to obtain a certificate from a healthcare professional attesting to the
legal merit of the case. This requires injured plaintiffs to find a
healthcare professional, not a lawyer, to evaluate the legal merits of
the case at the time of filing--closed frat house.
Certificates of merit are a costly, unnecessary obstacle and only
serve to block injured plaintiffs access to the courts. There is little
proof that such requirements reduce frivolous litigation or costs to
medical providers, and certainly they don't help people who have been
harmed by negligent treatment.
This requirement overrides State supreme court decisions in Arizona,
Arkansas, Ohio, Oklahoma, and Washington, which held that similar
lawsuit certification laws violated their State constitutions.
The amendment also requires an injured plaintiff to provide a
healthcare provider 90 days' written notice before commencing the
lawsuit. This notice requirement is another unnecessary hurdle intended
to increase the cost of litigation for injured plaintiffs and dissuade
them from filing suit. There is scant evidence that such notice reduces
frivolous litigation or facilitates the compensation of the injured
party.
Finally, the amendment represents the extreme intrusion on States'
rights, which this whole bill does, and is such a flip from the normal
Republican thought processes.
Each previously described provision includes the so-called State
flexibility provisions in an attempt to brush off federalism concerns
that these provisions are mostly one-way preemptive. They only preserve
State laws that mirror the amendments' requirements and State laws
which include requirements in addition to those imposed by the
amendment. While it preserves State notice requirements, it overrides
State laws that do not have such.
The States, not Congress, should determine the qualifications for
appearing as an expert witness in State court proceedings, determine
the appropriate uses of apology evidence, and decide whether
certificates are proper or not.
For these reasons, I, unfortunately, have to oppose the amendment by
my good friend Mr. Hudson, who is a great Tar Heel.
I yield back the balance of my time.
Mr. HUDSON. Mr. Chairman, may I ask how much how time I have
remaining.
The CHAIR. The gentleman from North Carolina has 3 minutes remaining.
Mr. HUDSON. Mr. Chairman, I yield 1 minute to the gentleman from Iowa
(Mr. King).
Mr. KING of Iowa. Mr. Chairman, I thank the gentleman for yielding
time to me.
Mr. Chairman, I rise in support of this improving amendment which
would save even more Federal taxpayer dollars by requiring the filing
of affidavits of merit from an appropriately qualified specialist,
requiring that expert witnesses have speciality backgrounds relevant to
the case, allowing doctors to apologize without fear of penalty, and
requiring a 90-day cooling-off period before lawsuits can be filed to
facilitate voluntary settlements.
I urge its adoption by the House, and I would point out that, as the
gentleman from Tennessee referred to a fraternity of healthcare
professionals as if somehow they couldn't come to an objective decision
on their own profession, there has to be a fraternity of lawyers that
are making these decisions for all of America right now. What we are
seeking to do today is to bring this back to common sense, bring it
back to we the people, keep it within the bounds of the Constitution,
and reduce the cost of healthcare across America $54 billion, and we
are looking at a potential for $650 billion a year.
Mr. Chairman, I urge its adoption.
Mr. HUDSON. Mr. Chairman, I thank the gentleman for his leadership on
this issue, and I also would like to express my appreciation to my
colleague from Tennessee.
We all care about patients and we all care about patients seeking
justice, but I just think maybe we disagree how to get there at this
point.
The one point he raised about the crocodile tears, the way he
describes the Sorry Provision, look, doctors are human beings and
sometimes things happen. It should be appropriate for a physician to be
able to express those feelings that they are sorry that that happened
without that being seen as some sign that there is guilt involved. So I
think the Sorry Provision is important because the doctor-patient
relationship is very important, and these are human beings.
The other argument that was raised, that it is an undue burden to
have to have an expert witness, listen. A lot of these cases are very
detailed and very specific. If you are talking about a cardiothoracic
event, you need a cardiothoracic surgeon to discuss that. A lot of
these speciality fields, it is important that you have someone from
that field as an expert.
Frankly, there are folks out there who have the profession of being
professional witnesses. They travel around the country and testify on
behalf of the plaintiff bar. Frankly, I think we need to have experts
testifying that are qualified to talk about those very specific cases
that they are testifying against.
The other thing that was raised is that the 90-day notice is an
unfair burden on a patient. Frankly, I believe that having a little bit
of time where individuals can talk could actually help that patient get
to a settlement, get some redress earlier.
I don't think you are delaying any kind of justice for individuals,
but I think it is important that there is notification time, there is
time for both parties to communicate. I think, in the end, you might
end up having justice delivered much quicker than going through a
lengthy trial that could have been avoided if you had a notice in the
beginning.
This amendment simply is seeking to provide justice for those who
deserve it much more quickly with much less expense, but also to
preserve our healthcare system.
Mr. Chairman, I urge my colleagues to support this amendment, and I
yield back the balance of my time.
The CHAIR. The question is on the amendment offered by the gentleman
from North Carolina (Mr. Hudson).
The question was taken; and the Chair announced that the ayes
appeared to have it.
Mr. COHEN. Mr. Chairman, I demand a recorded vote.
The CHAIR. Pursuant to clause 6 of rule XVIII, further proceedings on
the amendment offered by the gentleman from North Carolina will be
postponed.
Amendment No. 5 Offered by Mr. Barr
The CHAIR. It is now in order to consider amendment No. 5 printed in
House Report 115-179.
Mr. BARR. Mr. Chair, I have an amendment at the desk.
The CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:
Add, at the end of the bill, the following (and amend the
table of contents accordingly):
SEC. 11. AFFIRMATIVE DEFENSE.
(a) In General.--In the case of a health care lawsuit, it
shall be an affirmative defense to any health care liability
claim alleged therein that the defendant complied with a
clinical practice guideline that was established, published,
maintained, and updated on a regular basis by an eligible
professional organization and that is applicable to the
provision or use of health care services or medical products
for which the health care liability claim is brought.
(b) Definitions.--For purposes of this section:
[[Page H5282]]
(1) Clinical practice guideline.--The term ``clinical
practice guideline'' means systematically developed
statements based on the review of clinical evidence for
assisting a health care provider to determine the appropriate
health care in specific clinical circumstances.
(2) Eligible professional organization.--The term
``eligible professional organization'' means a national or
State medical society or medical specialty society.
The CHAIR. Pursuant to House Resolution 382, the gentleman from
Kentucky (Mr. Barr) and a Member opposed each will control 5 minutes.
The Chair recognizes the gentleman from Kentucky.
Mr. BARR. Mr. Chairman, I first want to commend Chairman Goodlatte
and Congressman King and others who worked on H.R. 1215, the Protecting
Access to Care Act, which aims to address the real problem of junk
lawsuits in the context of medical care.
Seventy-five percent of the doctors will face a malpractice lawsuit
over the course of their careers, and many of these claims are
frivolous, which drives up the cost of healthcare, encourages defensive
medicine, and contributes to the Nation's severe shortage of doctors
and nurses, especially in high-risk areas such as obstetrics,
neurosurgery, and emergency medicine.
We need to enact sensible medical malpractice reform, and given the
clear Federal interest in reducing taxpayer costs wherever Federal
policy affects the distribution of healthcare, I support H.R. 1215.
However, H.R. 1215 does not go far enough to discourage the practice
of defensive medicine, the provision of health services, tests, and
procedures designed to shield the provider from legal liability but
which may not be medically necessary or in the best interests of the
patient.
Defensive medicine is a major driver of healthcare costs and also
reduces the quality of patient care.
{time} 1615
In that spirit, I offer this amendment, which would expand upon the
reforms in H.R. 1215, to protect physicians from frivolous lawsuits,
while promoting the practice of evidence-based medicine to lower costs
and improve healthcare quality.
My amendment offers a legal safe harbor in the form of an affirmative
defense for defendants who can show that they adhered to clinical
practice guidelines in their area of medical practice. Rather than
Washington-based care, the guidelines would be developed by the
physician community-based on the best available scientific evidence.
This allows doctors to focus on practicing medicine and improves
healthcare quality by encouraging the practice of evidence-based, not
defensive medicine.
A New England Journal of Medicine study on clinical practice
guidelines and tort reform stated that ``Safe harbor rules hold promise
for realigning legal incentives with good medical practice and
promoting fast uptake of proven modes of care.'' By promoting adherence
to clinical practice guidelines that are already maintained by medical
specialty groups, this amendment would encourage physicians to provide
higher quality care, while reducing medical errors and waste.
Several States have already adopted safe harbor legislation and have
significantly lowered the length and costs associated with medical
malpractice cases. My amendment would build on the success of State
safe harbor laws by expanding it to a national level, while not
infringing on States' ability to implement additional tort reform.
Americans deserve healthcare reform that will help lower the cost of
care and protect the sacred doctor-patient relationship. The current
reforms within H.R. 1215 are an important first step to reducing the
high costs of medical malpractice claims. My amendment will further
strengthen this legislation to promote affordable evidence-based
patient care, reduce defensive medicine, and allow health professionals
to focus on patients' actual needs.
Mr. Chairman, I reserve the balance of my time.
Mr. COHEN. Mr. Chairman, I claim the time in opposition to my
friend's misguided amendment.
The Acting CHAIR (Mr. Collins of Georgia). The gentleman from
Tennessee is recognized for 5 minutes.
Mr. COHEN. Mr. Chairman, this is incongruous with the rest of the
discussion we have had. It is consistent in that it is an attempt to
say that people who have been harmed won't be able to recover, and it
makes it harder to recover; and it protects the physicians--and the
people--who basically are determined to have been negligent.
But, it says that, it is an affirmative defense to any healthcare
liability claim--that is not just to a doctor. A healthcare liability
claim could be to a nursing home or a medical device company--where the
defendant complied with a clinical practice guideline developed by a
national or State medical society or medical specialty society that is
applicable.
They have just argued that for the plaintiff to have an expert
witness, that expert witness has to come from the State where the
action is brought, or a contiguous State. But, for the defendant, you
can have a national practice guideline as an affirmative defense. So
when you are in Memphis, you can't get an expert witness from Harvard
or the University of Michigan or the University of Southern California
because those States aren't contiguous, but the physician could get a
medical society's or a national society's perspective and have it be an
affirmative offense.
It is inconsistent. The whole purpose of this law is inconsistency,
to give an advantage to those who have much and who do harm at the
expense of those who have been harmed and have less. We see this
continual attack on the poor and the injured.
In the healthcare bill, we talk about less opportunity because of
diminution in Medicaid for the poor, disabled, seniors, and pregnant
women to get healthcare. Here, we are talking about people who have
been injured--actually, in fact, injured. And we are saying that a
medical society's rule should be an affirmative defense, no matter
where they are. We limit the experts you can have, and we limit the
damages you can collect.
And this isn't to some specious group. This is to people who have
actually been injured, and the juries in their home districts have
found them to be plaintiffs who proved by a preponderance of the
evidence that the defendant tort fees, or doctor, nursing home, or
medical device company, breached the standard of care to which they
were held to. It is giving them protections of the law given by
Washington, almighty Washington.
Once again, I submit to you that the swamp is not being drained but
is overflowing to flood the courthouses and not allow justice to come
to those who have been harmed by negligence. For time and memorial, it
has been the province of the States, the Tenth Amendment. Tort
liability and court systems should be determined by legislators and bar
associations, maybe medical societies, but back home, not national
medical specialty societies or national medical societies as defenses,
which is what this particular amendment brings forth.
I heard my friend from Tennessee say that in Tennessee, 60 percent of
the verdicts go to lawyers. That is not true. He first talked about a
law passed in 2008, that limits attorneys' fees. So since then, it
certainly has not been 60 percent, and even before then it wasn't 60
percent. The typical contingency fee is a third, and nothing if you
don't win, and there are great expenses incurred.
This is closing the courthouse door to injured parties who juries
have found to be injured and limiting their access to recovery. This
allows a national medical society to be a part of a fraternity to give
an affirmative defense to another frat brother.
I oppose the amendment, I oppose the bill, and I am in favor of an
open and free court system that punishes malfeasance and rewards those
who have been injured by people who do not practice up to the standard
of care that is dictated for them in their own State.
Mr. Chairman, I reserve the balance of my time.
Mr. BARR. Mr. Chairman, in brief response to my friend from
Tennessee, the safe harbor legislation would not supplant the standard
of care, but it would allow for evidence-based medicine to improve
healthcare quality. Those standards would be developed by local doctors
participating in their medical societies.
Mr. Chairman, I yield to the gentleman from Iowa (Mr. King), my
friend.
Mr. KING of Iowa. Mr. Chairman, I thank the gentleman for yielding.
[[Page H5283]]
Mr. Chairman, I have a statement before me from Chairman Goodlatte,
the chairman of the full Judiciary Committee. I am going to represent
this as his statement, but the chairman thanks the gentleman from
Kentucky for his clarification while he remains opposed to the
amendment because it provides an overly broad definition of the
eligible professional organizations authorized to issue the guidelines
that would be used as an affirmative defense, and because it is not
supported by the wider coalition of medical groups supporting the base
bill. He looks forward to working with the gentleman to further refine
and improve his legislative proposal.
That concludes Chairman Goodlatte's statement that he would like read
into this Record.
And I would say on my own behalf, Mr. Chairman, that I very much
appreciate the work that Mr. Barr has brought to this. The language
that he presented originally, that had to be amended in order to
conform with the parliamentarian, I believe, does define this with
clarity. So I am inclined to support the gentleman from Kentucky. We
will see what happens if there is a recorded vote.
Mr. BARR. Mr. Chairman, I thank the gentleman for those comments.
Mr. Chairman, the clinical practice guideline safe harbor policies
have been supported by the American for Tax Reform, American College of
Radiology, Healthcare Leadership Council, American Academy of
Orthopedic Surgeons, American Society of Anesthesiologists, American
Academy of Neurology, American Urological Association, American College
of Surgeons, American Health Care Association, American College of
Obstetricians and Gynecologists, American Association of Neurological
Surgeons, Alliance of Specialty Medicine, Third Way, American College
of Physicians, American College of Emergency Physicians, American
Osteopathic Association, American College of Cardiologists, and the
American Academy of Ophthalmology.
As originally drafted, the amendment set forth the procedure in
detail.
Nevertheless, the process by which clinical practice guidelines are
proved and published is well established and well known. The text of
the amendment clearly references that existing and well-defined process
that provides for guidelines to be proposed, submitted, approved, and
published through the National Guideline Clearinghouse under the Agency
for Healthcare Research and Quality. This is a process that ensures the
integrity and quality of the applicable guidelines.
Mr. Chairman, I yield back the balance of my time.
Mr. COHEN. Mr. Chairman, I thank Mr. Goodlatte for his honest
testimony and submitting it. For that reason, among others, I will be
voting ``no'' on this amendment, and I hope that it will be found to be
``no'' by the Chair. Because when the chairman of the Judiciary
Committee, a fine Republican lawyer, says that the amendment is beyond
what they intended, it shouldn't really be part of the bill.
Mr. Chairman, I yield back the balance of my time.
The Acting CHAIR. The question is on the amendment offered by the
gentleman from Kentucky (Mr. Barr).
The question was taken; and the Acting Chair announced that the noes
appeared to have it.
Mr. BARR. Mr. Chairman, I demand a recorded vote.
The Acting CHAIR. Pursuant to clause 6 of rule XVIII, further
proceedings on the amendment offered by the gentleman from Kentucky
will be postponed.
Announcement by the Acting Chair
The Acting CHAIR. Pursuant to clause 6 of rule XVIII, proceedings
will now resume on those amendments printed in House Report 115-179 on
which further proceedings were postponed, in the following order:
Amendment No. 4 by Mr. Hudson of North Carolina.
Amendment No. 5 by Mr. Barr of Kentucky.
The Chair will reduce to 2 minutes the minimum time for any
electronic vote after the first vote in this series.
Amendment No. 4 Offered by Mr. Hudson
The Acting CHAIR. The unfinished business is the demand for a
recorded vote on the amendment offered by the gentleman from North
Carolina (Mr. Hudson) on which further proceedings were postponed and
on which the ayes prevailed by voice vote.
The Clerk will redesignate the amendment.
The Clerk redesignated the amendment.
Recorded Vote
The Acting CHAIR. A recorded vote has been demanded.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes 222,
noes 197, not voting 14, as follows:
[Roll No. 334]
AYES--222
Abraham
Aderholt
Allen
Arrington
Babin
Bacon
Banks (IN)
Barletta
Barr
Barton
Bera
Bergman
Biggs
Bilirakis
Bishop (MI)
Bishop (UT)
Blackburn
Blum
Bost
Brady (TX)
Brat
Bridenstine
Brooks (AL)
Brooks (IN)
Buchanan
Buck
Bucshon
Budd
Burgess
Byrne
Calvert
Carter (GA)
Carter (TX)
Chabot
Chaffetz
Cheney
Coffman
Cole
Collins (GA)
Collins (NY)
Comer
Comstock
Conaway
Cook
Correa
Costello (PA)
Cramer
Crawford
Cuellar
Culberson
Davis, Rodney
Denham
Dent
DeSantis
DesJarlais
Donovan
Duffy
Duncan (SC)
Dunn
Emmer
Estes (KS)
Farenthold
Faso
Ferguson
Fitzpatrick
Fleischmann
Flores
Fortenberry
Foxx
Franks (AZ)
Frelinghuysen
Gaetz
Gallagher
Gianforte
Gibbs
Gohmert
Goodlatte
Gosar
Gowdy
Granger
Graves (GA)
Graves (LA)
Graves (MO)
Grothman
Guthrie
Handel
Harper
Harris
Hartzler
Hensarling
Herrera Beutler
Hice, Jody B.
Higgins (LA)
Hill
Holding
Hollingsworth
Hudson
Huizenga
Hultgren
Hunter
Hurd
Issa
Jenkins (KS)
Jenkins (WV)
Johnson (LA)
Johnson (OH)
Johnson, Sam
Jordan
Joyce (OH)
Katko
Kelly (MS)
Kelly (PA)
King (IA)
King (NY)
Kinzinger
Knight
Kustoff (TN)
Labrador
LaHood
LaMalfa
Lamborn
Lance
Latta
Lewis (MN)
Loudermilk
Love
Lucas
Luetkemeyer
MacArthur
Marchant
Marino
Marshall
Mast
McCarthy
McCaul
McClintock
McHenry
McKinley
McMorris Rodgers
McSally
Meadows
Meehan
Messer
Mitchell
Moolenaar
Mooney (WV)
Mullin
Murphy (PA)
Newhouse
Noem
Norman
Nunes
Olson
Palazzo
Palmer
Paulsen
Pearce
Peters
Peterson
Pittenger
Poliquin
Ratcliffe
Reed
Reichert
Rice (SC)
Roby
Roe (TN)
Rogers (KY)
Rohrabacher
Rokita
Rooney, Francis
Rooney, Thomas J.
Rosen
Roskam
Ross
Rothfus
Rouzer
Royce (CA)
Ruiz
Rutherford
Schweikert
Scott, Austin
Sensenbrenner
Sessions
Shimkus
Shuster
Simpson
Smith (MO)
Smith (NE)
Smith (TX)
Smucker
Stefanik
Stewart
Taylor
Tenney
Thompson (PA)
Thornberry
Tiberi
Tipton
Trott
Upton
Valadao
Wagner
Walberg
Walden
Walker
Walorski
Walters, Mimi
Weber (TX)
Webster (FL)
Wenstrup
Westerman
Williams
Wilson (SC)
Wittman
Womack
Woodall
Yoder
Yoho
Young (AK)
Young (IA)
Zeldin
NOES--197
Adams
Aguilar
Amash
Barragan
Bass
Beatty
Beyer
Bishop (GA)
Blumenauer
Blunt Rochester
Bonamici
Boyle, Brendan F.
Brady (PA)
Brown (MD)
Brownley (CA)
Bustos
Butterfield
Capuano
Carbajal
Cardenas
Carson (IN)
Cartwright
Castor (FL)
Castro (TX)
Chu, Judy
Cicilline
Clark (MA)
Clarke (NY)
Clay
Cleaver
Clyburn
Cohen
Connolly
Conyers
Cooper
Costa
Courtney
Crist
Crowley
Curbelo (FL)
Davidson
Davis (CA)
Davis, Danny
DeFazio
DeGette
Delaney
DeLauro
DelBene
Demings
DeSaulnier
Deutch
Diaz-Balart
Dingell
Doggett
Doyle, Michael F.
Duncan (TN)
Ellison
Engel
Eshoo
Espaillat
Esty (CT)
Evans
Foster
Frankel (FL)
Fudge
Gabbard
Gallego
Garamendi
Garrett
Gonzalez (TX)
Gottheimer
Green, Al
Green, Gene
Griffith
Grijalva
Gutierrez
Hanabusa
Hastings
Heck
Higgins (NY)
Himes
Hoyer
Huffman
Jackson Lee
Jayapal
Jeffries
Johnson (GA)
Kaptur
Keating
Kelly (IL)
Kennedy
Khanna
Kihuen
Kildee
Kilmer
Kind
Krishnamoorthi
Kuster (NH)
Larsen (WA)
Larson (CT)
Lawrence
Lawson (FL)
Lee
Levin
Lewis (GA)
Lieu, Ted
Lipinski
LoBiondo
Loebsack
Lofgren
Lowenthal
Lowey
Lujan Grisham, M.
Lujan, Ben Ray
Lynch
Maloney, Carolyn B.
Maloney, Sean
Massie
Matsui
McCollum
McEachin
McGovern
Meng
Moore
Moulton
Murphy (FL)
Nadler
Neal
Nolan
Norcross
O'Halleran
O'Rourke
Pallone
Panetta
Pascrell
Payne
Pelosi
Perlmutter
Perry
Pingree
[[Page H5284]]
Pocan
Poe (TX)
Polis
Posey
Price (NC)
Quigley
Raskin
Rice (NY)
Richmond
Ros-Lehtinen
Roybal-Allard
Ruppersberger
Rush
Russell
Ryan (OH)
Sanchez
Sanford
Sarbanes
Schakowsky
Schiff
Schneider
Schrader
Scott (VA)
Scott, David
Serrano
Sewell (AL)
Shea-Porter
Sherman
Sinema
Sires
Slaughter
Smith (NJ)
Smith (WA)
Soto
Speier
Suozzi
Swalwell (CA)
Takano
Thompson (CA)
Thompson (MS)
Titus
Tonko
Torres
Tsongas
Turner
Vargas
Veasey
Vela
Velazquez
Visclosky
Walz
Wasserman Schultz
Waters, Maxine
Watson Coleman
Welch
Wilson (FL)
Yarmuth
NOT VOTING--14
Amodei
Black
Cummings
Johnson, E. B.
Jones
Langevin
Long
McNerney
Meeks
Napolitano
Renacci
Rogers (AL)
Scalise
Stivers
{time} 1646
Ms. TSONGAS changed her vote from ``aye'' to ``no.''
So the amendment was agreed to.
The result of the vote was announced as above recorded.
Stated against:
Ms. EDDIE BERNICE JOHNSON of Texas. Mr. Chair, I was unavoidably
detained. Had I been present, I would have voted ``nay'' on rollcall
No. 334.
Amendment No. 5 Offered by Mr. Barr
The Acting CHAIR. The unfinished business is the demand for a
recorded vote on the amendment offered by the gentleman from Kentucky
(Mr. Barr) on which further proceedings were postponed and on which the
noes prevailed by voice vote.
The Clerk will redesignate the amendment.
The Clerk redesignated the amendment.
Recorded Vote
The Acting CHAIR. A recorded vote has been demanded.
A recorded vote was ordered.
The Acting CHAIR. This is a 2-minute vote.
The vote was taken by electronic device, and there were--ayes 116,
noes 310, not voting 7, as follows:
[Roll No. 335]
AYES--116
Abraham
Aderholt
Allen
Amodei
Barletta
Barr
Bera
Bergman
Bilirakis
Bishop (UT)
Brooks (AL)
Bucshon
Budd
Carter (GA)
Cheney
Cole
Comstock
Correa
Costello (PA)
Cuellar
Davidson
Davis, Rodney
Dent
DeSantis
DesJarlais
Duffy
Duncan (SC)
Dunn
Farenthold
Ferguson
Fitzpatrick
Fleischmann
Fortenberry
Foxx
Franks (AZ)
Gaetz
Gallagher
Gianforte
Gosar
Graves (GA)
Graves (LA)
Graves (MO)
Guthrie
Harris
Hice, Jody B.
Holding
Hollingsworth
Hudson
Huizenga
Hunter
Jenkins (KS)
Jenkins (WV)
Johnson (LA)
Joyce (OH)
Kaptur
Kelly (PA)
King (IA)
Kustoff (TN)
Labrador
LaMalfa
Lamborn
Loudermilk
MacArthur
Marchant
Marino
Marshall
Mast
McCaul
McMorris Rodgers
Meadows
Meehan
Mooney (WV)
Mullin
Norman
Nunes
Palmer
Pearce
Peters
Rice (SC)
Roe (TN)
Rogers (KY)
Rohrabacher
Rokita
Rooney, Thomas J.
Rosen
Roskam
Ross
Rothfus
Rouzer
Ruiz
Schrader
Schweikert
Scott, Austin
Sessions
Simpson
Sinema
Smith (MO)
Smith (NE)
Smucker
Stewart
Tenney
Thompson (PA)
Tiberi
Valadao
Wagner
Walberg
Walker
Webster (FL)
Wenstrup
Westerman
Williams
Wilson (SC)
Woodall
Yoder
Young (AK)
Young (IA)
NOES--310
Adams
Aguilar
Amash
Arrington
Babin
Bacon
Banks (IN)
Barragan
Barton
Bass
Beatty
Beyer
Biggs
Bishop (GA)
Bishop (MI)
Black
Blackburn
Blum
Blumenauer
Blunt Rochester
Bonamici
Bost
Boyle, Brendan F.
Brady (PA)
Brady (TX)
Brat
Bridenstine
Brooks (IN)
Brown (MD)
Brownley (CA)
Buchanan
Buck
Burgess
Bustos
Butterfield
Byrne
Calvert
Capuano
Carbajal
Cardenas
Carson (IN)
Carter (TX)
Cartwright
Castor (FL)
Castro (TX)
Chabot
Chaffetz
Chu, Judy
Cicilline
Clark (MA)
Clarke (NY)
Clay
Cleaver
Clyburn
Coffman
Cohen
Collins (GA)
Collins (NY)
Comer
Conaway
Connolly
Conyers
Cook
Cooper
Costa
Courtney
Cramer
Crawford
Crist
Crowley
Culberson
Curbelo (FL)
Davis (CA)
Davis, Danny
DeFazio
DeGette
Delaney
DeLauro
DelBene
Demings
Denham
DeSaulnier
Deutch
Diaz-Balart
Dingell
Doggett
Donovan
Doyle, Michael F.
Duncan (TN)
Ellison
Emmer
Engel
Eshoo
Espaillat
Estes (KS)
Esty (CT)
Evans
Faso
Flores
Foster
Frankel (FL)
Frelinghuysen
Fudge
Gabbard
Gallego
Garrett
Gibbs
Gohmert
Gonzalez (TX)
Goodlatte
Gottheimer
Gowdy
Granger
Green, Al
Green, Gene
Griffith
Grijalva
Grothman
Gutierrez
Hanabusa
Handel
Harper
Hartzler
Hastings
Heck
Hensarling
Herrera Beutler
Higgins (LA)
Higgins (NY)
Hill
Himes
Hoyer
Huffman
Hultgren
Hurd
Issa
Jackson Lee
Jayapal
Jeffries
Johnson (GA)
Johnson (OH)
Johnson, E. B.
Johnson, Sam
Jones
Jordan
Katko
Keating
Kelly (IL)
Kelly (MS)
Kennedy
Khanna
Kihuen
Kildee
Kilmer
Kind
King (NY)
Kinzinger
Knight
Krishnamoorthi
Kuster (NH)
LaHood
Lance
Langevin
Larsen (WA)
Larson (CT)
Latta
Lawrence
Lawson (FL)
Lee
Levin
Lewis (GA)
Lewis (MN)
Lieu, Ted
Lipinski
LoBiondo
Loebsack
Lofgren
Love
Lowenthal
Lowey
Lucas
Luetkemeyer
Lujan Grisham, M.
Lujan, Ben Ray
Lynch
Maloney, Carolyn B.
Maloney, Sean
Massie
Matsui
McCarthy
McClintock
McCollum
McEachin
McGovern
McHenry
McKinley
McNerney
McSally
Meeks
Meng
Messer
Mitchell
Moolenaar
Moore
Moulton
Murphy (FL)
Murphy (PA)
Nadler
Neal
Newhouse
Noem
Nolan
Norcross
O'Halleran
O'Rourke
Olson
Palazzo
Pallone
Panetta
Pascrell
Paulsen
Payne
Pelosi
Perlmutter
Perry
Peterson
Pingree
Pittenger
Pocan
Poe (TX)
Poliquin
Polis
Posey
Price (NC)
Quigley
Raskin
Ratcliffe
Reed
Reichert
Rice (NY)
Richmond
Roby
Rogers (AL)
Rooney, Francis
Ros-Lehtinen
Roybal-Allard
Royce (CA)
Ruppersberger
Rush
Russell
Rutherford
Ryan (OH)
Sanchez
Sanford
Sarbanes
Schakowsky
Schiff
Schneider
Scott (VA)
Scott, David
Sensenbrenner
Serrano
Sewell (AL)
Shea-Porter
Sherman
Shimkus
Shuster
Sires
Slaughter
Smith (NJ)
Smith (TX)
Smith (WA)
Soto
Speier
Stefanik
Suozzi
Swalwell (CA)
Takano
Taylor
Thompson (CA)
Thompson (MS)
Thornberry
Tipton
Titus
Tonko
Torres
Trott
Tsongas
Turner
Upton
Vargas
Veasey
Vela
Velazquez
Visclosky
Walden
Walorski
Walters, Mimi
Walz
Wasserman Schultz
Waters, Maxine
Watson Coleman
Weber (TX)
Welch
Wilson (FL)
Wittman
Womack
Yarmuth
Yoho
Zeldin
NOT VOTING--7
Cummings
Garamendi
Long
Napolitano
Renacci
Scalise
Stivers
Announcement by the Acting Chair
The Acting CHAIR (during the vote). There is 1 minute remaining.
{time} 1653
Mr. MICHAEL F. DOYLE of Pennsylvania changed his vote from ``aye'' to
``no.''
Messrs. RICE of South Carolina and DENT changed their vote from
``no'' to ``aye.''
So the amendment was rejected.
The result of the vote was announced as above recorded.
Stated against:
Mr. LANGEVIN. Mr. Chair, on rollcall vote 335, I was unavoidably
detained. Had I been present, I would have voted ``no.''
The Acting CHAIR (Mr. Yoder). The question is on the amendment in the
nature of a substitute, as amended.
The amendment was agreed to.
The Acting CHAIR. Under the rule, the Committee rises.
Accordingly, the Committee rose; and the Speaker pro tempore (Mr.
Collins of Georgia) having assumed the chair, Mr. Yoder, Acting Chair
of the Committee of the Whole House on the state of the Union, reported
that that Committee, having had under consideration the bill (H.R.
1215) to improve patient access to health care services and provide
improved medical care by reducing the excessive burden the liability
system places on the health care delivery system, and, pursuant to
House Resolution 382, he reported the bill back to the House with an
amendment adopted in the Committee of the Whole.
The SPEAKER pro tempore. Under the rule, the previous question is
ordered.
Is a separate vote demanded on any amendment to the amendment
reported from the Committee of the Whole?
If not, the question is on the amendment in the nature of a
substitute, as amended.
The amendment was agreed to.
The SPEAKER pro tempore. The question is on the engrossment and third
reading of the bill.
The bill was ordered to be engrossed and read a third time, and was
read the third time.
[[Page H5285]]
Motion to Recommit
Ms. KUSTER of New Hampshire. Mr. Speaker, I have a motion to recommit
at the desk.
The SPEAKER pro tempore. Is the gentlewoman opposed to the bill?
Ms. KUSTER of New Hampshire. I am opposed to the bill in its current
form.
The SPEAKER pro tempore. The Clerk will report the motion to
recommit.
The Clerk read as follows:
Ms. KUSTER of New Hampshire moves to recommit the bill H.R.
1215 to the Committee on the Judiciary with instructions to
report the same back to the House forthwith with the
following amendment:
Add, at the end of the bill, the following (and conform the
table of contents accordingly):
SEC. 11. COMBATTING THE OPIOIDS EPIDEMIC.
For purposes of this Act, the term ``health care lawsuit'',
as defined in section 7, does not include a claim or action
which pertains to the grossly negligent prescription of
opioids.
Mr. GAETZ (during the reading). Mr. Speaker, I ask unanimous consent
to dispense with the reading.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Florida?
There was no objection.
The SPEAKER pro tempore. The gentlewoman is recognized for 5 minutes.
Ms. KUSTER of New Hampshire. Mr. Speaker, this is the final amendment
to the bill, which will not kill the bill or send it back to committee.
If adopted, the bill will immediately proceed to final passage as
amended.
Like so many communities and States across this country, New
Hampshire has been devastated by the heroin and opioid epidemic. Last
year alone, my State lost 500 people to substance use disorder.
Helping families, first responders, treatment providers, law
enforcement officials, and family advocates in the Granite State
confront this crisis has been my number one priority in Congress.
In 2015, Mr. Guinta and I founded the Bipartisan Congressional Heroin
Task Force to raise awareness of this crisis and to advocate in a
collaborative way for solutions at the Federal level. I am proud to
report that our bipartisan task force is now 90 members strong, and we
have made important progress in passing legislation and securing
critical funding.
But the causes of this crisis are complex, requiring a multifaceted
approach addressing every angle of the epidemic, from treatment to
recovery, from education and prevention to law enforcement and
interdiction.
A primary cause of opioid misuse resulting in heroin dependence is
the overprescribing of opioid pain medication.
The data is astonishing. A December 2016 study found that opioids
were prescribed to 91 percent of patients after they had experienced an
overdose, and, in fact, 63 percent of patients on high-dose opioids
were still prescribed high-dose opioids after overdosing.
We have all heard the stories: teens who had their wisdom teeth
removed receiving 30-day supplies of opioids, or a person with back
pain receiving prescriptions for extended release opioids even though
Tylenol would keep them comfortable.
America consumes 80 percent of the global supply of opioid
medication, and 650,000 opioid prescriptions are written every single
day.
Earlier this year, a study by the Centers for Disease Control and
Prevention found the following extraordinary fact: if 100 people take
opioid medication for 1 day, 6 percent will still be using 30 days
later; and if 100 people take opioid medication for 30 days, 35 percent
of those patients will still be using opioids a year later.
Our task force is working closely with the medical community to
strengthen prescribing practices so that patients can manage their pain
in an effective and responsible way.
Through my role on the Veterans' Affairs Committee, I am working with
my colleagues to improve pain management practices at the VA and to
better understand alternative methods for pain management.
The White River Junction VA facility in Vermont serving New Hampshire
veterans is a great example where they have cut opioid prescriptions
nearly in half by incorporating alternative treatments.
While there is much work that we can do to understand this issue,
there remain bad actors across this country who are exploiting those
who suffer from substance use disorder for their own financial gain.
In rural communities and elsewhere, pill mills churn out opioid
prescriptions with no regard for the well-being of their patients. And
just last month, a doctor in New England pled guilty to healthcare
fraud for overprescribing opioids, including writing more than 1,100
Oxycodone prescriptions in a single month.
Victims of exploitative prescribing practices must have the
unencumbered capacity of our legal system to recoup their damages and
to deter negative industry practices.
I am concerned that arbitrary limitations in this legislation on
legal damages could limit their ability to effectively respond to the
opioid epidemic, and that is why my amendment would simply exempt from
the legislation any claim or action that pertains to grossly negligent
prescription of opioids. Should this bill become law, this provision
will help protect those who have been exploited by predatory physicians
operating pill mills.
There is so much we should do to roll back this crisis, and I look
forward to our continued bipartisan work. But today I urge my
colleagues to approve this motion.
Mr. Speaker, I yield back the balance of my time.
Mr. GAETZ. Mr. Speaker, I rise to oppose the motion to recommit.
The SPEAKER pro tempore. The gentleman from Florida is recognized for
5 minutes.
Mr. GAETZ. Mr. Speaker, the motion to recommit is ambiguous, as there
is no legal standard currently for that which constitutes gross
negligence in the area of prescriptions.
Already this legislation does not apply to circumstances in which
there is criminal conduct. That means that bad doctors with bad intent
will be prosecuted, and in every State in America, there are legal
standards by which those very doctors would lose their license were
they to engage in the conduct that the gentlewoman highlighted.
Mr. Speaker, healthcare costs are rising at alarming rates due to the
failures of ObamaCare. This bill will reduce healthcare costs. It will
improve the quality of care received.
Mr. Speaker, through this underlying legislation, we will enhance the
relationship between patients and doctors. We will reduce frivolous
litigation. And by ultimately addressing the challenges that arise with
increasing healthcare costs, we will make it more easy to get to the
affordability challenges with healthcare coverage.
This will ultimately increase wages for the American worker because,
due to the failures of ObamaCare, more businesses are having to put
money into healthcare premiums and not into wages, not into job
creation, and not into the success of the American people.
Mr. Speaker, if what we really aspire to are better healthcare
outcomes and more doctors able to treat people who are dealing with the
challenges of opioid addiction, I would ask my colleagues to oppose
this motion to recommit, support this bill, and get better healthcare
outcomes for the American people.
Mr. Speaker, I yield back the balance of my time.
The SPEAKER pro tempore. Without objection, the previous question is
ordered on the motion to recommit.
There was no objection.
The SPEAKER pro tempore. The question is on the motion to recommit.
The question was taken; and the Speaker pro tempore announced that
the noes appeared to have it.
Recorded Vote
Ms. KUSTER of New Hampshire. Mr. Speaker, I demand a recorded vote.
A recorded vote was ordered.
The SPEAKER pro tempore. Pursuant to clause 8 and clause 9 of rule
XX, this 5-minute vote on the motion to recommit will be followed by 5-
minute votes on:
Passage of the bill, if ordered; and
The motion to suspend the rules and pass H.R. 1500.
The vote was taken by electronic device, and there were--ayes 191,
noes 235, not voting 7, as follows:
[[Page H5286]]
[Roll No. 336]
AYES--191
Adams
Aguilar
Barragan
Bass
Beatty
Bera
Beyer
Bishop (GA)
Blumenauer
Blunt Rochester
Bonamici
Boyle, Brendan F.
Brady (PA)
Brown (MD)
Brownley (CA)
Bustos
Butterfield
Capuano
Carbajal
Cardenas
Carson (IN)
Cartwright
Castor (FL)
Castro (TX)
Chu, Judy
Cicilline
Clark (MA)
Clarke (NY)
Clay
Cleaver
Clyburn
Cohen
Connolly
Conyers
Cooper
Correa
Costa
Courtney
Crist
Crowley
Cuellar
Davis (CA)
Davis, Danny
DeFazio
DeGette
Delaney
DeLauro
DelBene
Demings
DeSaulnier
Deutch
Dingell
Doggett
Doyle, Michael F.
Ellison
Engel
Eshoo
Espaillat
Esty (CT)
Evans
Foster
Frankel (FL)
Fudge
Gabbard
Gallego
Garamendi
Gonzalez (TX)
Gottheimer
Green, Al
Green, Gene
Grijalva
Gutierrez
Hanabusa
Hastings
Heck
Higgins (NY)
Himes
Hoyer
Huffman
Jackson Lee
Jayapal
Jeffries
Johnson (GA)
Johnson, E. B.
Kaptur
Keating
Kelly (IL)
Kennedy
Khanna
Kihuen
Kildee
Kilmer
Kind
Krishnamoorthi
Kuster (NH)
Langevin
Larsen (WA)
Larson (CT)
Lawrence
Lawson (FL)
Lee
Levin
Lewis (GA)
Lieu, Ted
Lipinski
Loebsack
Lofgren
Lowenthal
Lowey
Lujan Grisham, M.
Lujan, Ben Ray
Lynch
Maloney, Carolyn B.
Maloney, Sean
Matsui
McCollum
McEachin
McGovern
McNerney
Meeks
Meng
Moore
Moulton
Murphy (FL)
Nadler
Neal
Nolan
Norcross
O'Halleran
O'Rourke
Pallone
Panetta
Pascrell
Payne
Pelosi
Perlmutter
Peters
Peterson
Pingree
Pocan
Polis
Price (NC)
Quigley
Raskin
Rice (NY)
Richmond
Rosen
Roybal-Allard
Ruiz
Ruppersberger
Rush
Ryan (OH)
Sanchez
Sarbanes
Schakowsky
Schiff
Schneider
Schrader
Scott (VA)
Scott, David
Serrano
Sewell (AL)
Shea-Porter
Sherman
Sinema
Sires
Slaughter
Smith (WA)
Soto
Speier
Suozzi
Swalwell (CA)
Takano
Thompson (CA)
Thompson (MS)
Titus
Tonko
Torres
Tsongas
Vargas
Veasey
Vela
Velazquez
Visclosky
Walz
Wasserman Schultz
Waters, Maxine
Watson Coleman
Welch
Wilson (FL)
Yarmuth
NOES--235
Abraham
Aderholt
Allen
Amash
Amodei
Arrington
Babin
Bacon
Banks (IN)
Barletta
Barr
Barton
Bergman
Biggs
Bilirakis
Bishop (MI)
Bishop (UT)
Black
Blackburn
Blum
Bost
Brat
Bridenstine
Brooks (AL)
Brooks (IN)
Buchanan
Buck
Bucshon
Budd
Burgess
Byrne
Calvert
Carter (GA)
Carter (TX)
Chabot
Chaffetz
Cheney
Coffman
Cole
Collins (GA)
Collins (NY)
Comer
Comstock
Conaway
Cook
Costello (PA)
Cramer
Crawford
Culberson
Curbelo (FL)
Davidson
Davis, Rodney
Denham
Dent
DeSantis
DesJarlais
Diaz-Balart
Donovan
Duffy
Duncan (SC)
Duncan (TN)
Dunn
Emmer
Estes (KS)
Farenthold
Faso
Ferguson
Fitzpatrick
Fleischmann
Flores
Fortenberry
Foxx
Franks (AZ)
Frelinghuysen
Gaetz
Gallagher
Garrett
Gianforte
Gibbs
Gohmert
Goodlatte
Gosar
Gowdy
Granger
Graves (GA)
Graves (LA)
Graves (MO)
Griffith
Grothman
Guthrie
Handel
Harper
Harris
Hartzler
Hensarling
Herrera Beutler
Hice, Jody B.
Higgins (LA)
Hill
Holding
Hollingsworth
Hudson
Huizenga
Hultgren
Hunter
Hurd
Issa
Jenkins (KS)
Jenkins (WV)
Johnson (LA)
Johnson (OH)
Johnson, Sam
Jones
Jordan
Joyce (OH)
Katko
Kelly (MS)
Kelly (PA)
King (IA)
King (NY)
Kinzinger
Knight
Kustoff (TN)
Labrador
LaHood
LaMalfa
Lamborn
Lance
Latta
Lewis (MN)
LoBiondo
Loudermilk
Love
Lucas
Luetkemeyer
MacArthur
Marchant
Marino
Marshall
Massie
Mast
McCarthy
McCaul
McClintock
McHenry
McKinley
McMorris Rodgers
McSally
Meadows
Meehan
Messer
Mitchell
Moolenaar
Mooney (WV)
Mullin
Murphy (PA)
Newhouse
Noem
Norman
Nunes
Olson
Palazzo
Palmer
Paulsen
Pearce
Perry
Pittenger
Poe (TX)
Poliquin
Posey
Ratcliffe
Reed
Reichert
Rice (SC)
Roby
Roe (TN)
Rogers (AL)
Rogers (KY)
Rohrabacher
Rokita
Rooney, Francis
Rooney, Thomas J.
Ros-Lehtinen
Roskam
Ross
Rothfus
Rouzer
Royce (CA)
Russell
Rutherford
Sanford
Schweikert
Scott, Austin
Sensenbrenner
Sessions
Shimkus
Shuster
Simpson
Smith (MO)
Smith (NE)
Smith (NJ)
Smith (TX)
Smucker
Stefanik
Stewart
Taylor
Tenney
Thompson (PA)
Thornberry
Tiberi
Tipton
Trott
Turner
Upton
Valadao
Wagner
Walberg
Walden
Walker
Walorski
Walters, Mimi
Weber (TX)
Webster (FL)
Wenstrup
Westerman
Williams
Wilson (SC)
Wittman
Womack
Woodall
Yoder
Yoho
Young (AK)
Young (IA)
Zeldin
NOT VOTING--7
Brady (TX)
Cummings
Long
Napolitano
Renacci
Scalise
Stivers
Announcement by the Speaker Pro Tempore
The SPEAKER pro tempore (during the vote). There are 2 minutes
remaining.
{time} 1712
So the motion to recommit was rejected.
The result of the vote was announced as above recorded.
Stated against:
Mr. BRADY of Texas. Mr. Speaker, on rollcall no. 336, I was
unavoidably detained to cast my vote in time. Had I been present, I
would have voted ``no.''
The SPEAKER pro tempore. The question is on the passage of the bill.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Recorded Vote
Mr. CONYERS. Mr. Speaker, I demand a recorded vote.
A recorded vote was ordered.
The SPEAKER pro tempore. This is a 5-minute vote.
The vote was taken by electronic device, and there were--ayes 218,
noes 210, not voting 6, as follows:
[Roll No. 337]
AYES--218
Abraham
Aderholt
Allen
Amodei
Arrington
Babin
Bacon
Banks (IN)
Barletta
Barr
Barton
Bergman
Biggs
Bilirakis
Bishop (MI)
Bishop (UT)
Black
Blackburn
Blum
Bost
Brady (TX)
Brat
Bridenstine
Brooks (AL)
Brooks (IN)
Buchanan
Buck
Bucshon
Budd
Burgess
Byrne
Calvert
Carter (GA)
Carter (TX)
Chabot
Chaffetz
Cheney
Coffman
Cole
Collins (GA)
Collins (NY)
Comer
Comstock
Conaway
Cook
Cramer
Crawford
Culberson
Davidson
Davis, Rodney
Denham
Dent
DeSantis
DesJarlais
Diaz-Balart
Donovan
Duffy
Duncan (SC)
Dunn
Estes (KS)
Farenthold
Faso
Ferguson
Fitzpatrick
Fleischmann
Flores
Fortenberry
Foxx
Franks (AZ)
Frelinghuysen
Gaetz
Gallagher
Gianforte
Gibbs
Goodlatte
Gosar
Gowdy
Granger
Graves (GA)
Graves (LA)
Graves (MO)
Grothman
Guthrie
Handel
Harper
Harris
Hartzler
Hensarling
Herrera Beutler
Hice, Jody B.
Higgins (LA)
Hill
Holding
Hollingsworth
Hudson
Huizenga
Hultgren
Hunter
Hurd
Issa
Jenkins (KS)
Jenkins (WV)
Johnson (LA)
Johnson (OH)
Johnson, Sam
Jordan
Joyce (OH)
Katko
Kelly (MS)
Kelly (PA)
King (IA)
King (NY)
Kinzinger
Knight
Labrador
LaHood
LaMalfa
Lamborn
Lance
Latta
Lewis (MN)
LoBiondo
Loudermilk
Love
Lucas
Luetkemeyer
MacArthur
Marchant
Marshall
Mast
McCarthy
McCaul
McClintock
McHenry
McKinley
McMorris Rodgers
Meadows
Messer
Mitchell
Moolenaar
Mooney (WV)
Mullin
Murphy (PA)
Newhouse
Noem
Norman
Nunes
Olson
Palazzo
Palmer
Paulsen
Pearce
Perry
Pittenger
Poliquin
Ratcliffe
Reed
Reichert
Rice (SC)
Roby
Roe (TN)
Rogers (AL)
Rogers (KY)
Rohrabacher
Rokita
Rooney, Francis
Rooney, Thomas J.
Roskam
Ross
Rothfus
Rouzer
Royce (CA)
Rutherford
Ryan (WI)
Sanford
Schweikert
Scott, Austin
Sensenbrenner
Sessions
Shimkus
Shuster
Simpson
Smith (MO)
Smith (NE)
Smith (NJ)
Smith (TX)
Smucker
Stefanik
Stewart
Taylor
Tenney
Thompson (PA)
Thornberry
Tiberi
Tipton
Trott
Turner
Upton
Valadao
Wagner
Walberg
Walden
Walker
Walorski
Walters, Mimi
Weber (TX)
Wenstrup
Westerman
Williams
Wilson (SC)
Wittman
Womack
Woodall
Yoder
Yoho
Young (AK)
Young (IA)
Zeldin
NOES--210
Adams
Aguilar
Amash
Barragan
Bass
Beatty
Bera
Beyer
Bishop (GA)
Blumenauer
Blunt Rochester
Bonamici
Boyle, Brendan F.
Brady (PA)
Brown (MD)
Brownley (CA)
Bustos
Butterfield
Capuano
Carbajal
Cardenas
Carson (IN)
Cartwright
Castor (FL)
Castro (TX)
Chu, Judy
Cicilline
Clark (MA)
Clarke (NY)
Clay
Cleaver
Clyburn
Cohen
Connolly
Conyers
Cooper
Correa
Costa
Costello (PA)
Courtney
Crist
Crowley
Cuellar
Curbelo (FL)
Davis (CA)
Davis, Danny
DeFazio
DeGette
Delaney
DeLauro
DelBene
Demings
DeSaulnier
Deutch
Dingell
Doggett
Doyle, Michael F.
Duncan (TN)
Ellison
Emmer
Engel
Eshoo
Espaillat
Esty (CT)
Evans
Foster
Frankel (FL)
Fudge
Gabbard
Gallego
Garamendi
Garrett
Gohmert
[[Page H5287]]
Gonzalez (TX)
Gottheimer
Green, Al
Green, Gene
Griffith
Grijalva
Gutierrez
Hanabusa
Hastings
Heck
Higgins (NY)
Himes
Hoyer
Huffman
Jackson Lee
Jayapal
Jeffries
Johnson (GA)
Johnson, E. B.
Jones
Kaptur
Keating
Kelly (IL)
Kennedy
Khanna
Kihuen
Kildee
Kilmer
Kind
Krishnamoorthi
Kuster (NH)
Kustoff (TN)
Langevin
Larsen (WA)
Larson (CT)
Lawrence
Lawson (FL)
Lee
Levin
Lewis (GA)
Lieu, Ted
Lipinski
Loebsack
Lofgren
Lowenthal
Lowey
Lujan Grisham, M.
Lujan, Ben Ray
Lynch
Maloney, Carolyn B.
Maloney, Sean
Marino
Massie
Matsui
McCollum
McEachin
McGovern
McNerney
McSally
Meehan
Meeks
Meng
Moore
Moulton
Murphy (FL)
Nadler
Neal
Nolan
Norcross
O'Halleran
O'Rourke
Pallone
Panetta
Pascrell
Payne
Pelosi
Perlmutter
Peters
Peterson
Pingree
Pocan
Poe (TX)
Polis
Posey
Price (NC)
Quigley
Raskin
Rice (NY)
Richmond
Ros-Lehtinen
Rosen
Roybal-Allard
Ruiz
Ruppersberger
Rush
Russell
Ryan (OH)
Sanchez
Sarbanes
Schakowsky
Schiff
Schneider
Schrader
Scott (VA)
Scott, David
Serrano
Sewell (AL)
Shea-Porter
Sherman
Sinema
Sires
Slaughter
Smith (WA)
Soto
Speier
Suozzi
Swalwell (CA)
Takano
Thompson (CA)
Thompson (MS)
Titus
Tonko
Torres
Tsongas
Vargas
Veasey
Vela
Velazquez
Visclosky
Walz
Wasserman Schultz
Waters, Maxine
Watson Coleman
Webster (FL)
Welch
Wilson (FL)
Yarmuth
NOT VOTING--6
Cummings
Long
Napolitano
Renacci
Scalise
Stivers
Announcement by the Speaker Pro Tempore
The SPEAKER pro tempore (during the vote). There are 2 minutes
remaining.
{time} 1719
So the bill was passed.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
____________________